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Himachal Pradesh High Court · body

2019 DIGILAW 863 (HP)

Anil Kumar v. Prakash Viz

2019-07-04

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. (Oral) By way of this petition, the petitioner has challenged the order passed by the Court of learned Civil Judge (Junior-Division), Court No.3, Shimla, District Shimla, H.P., in C.M.A. No. 9003752/2018, dated 18.3.2019, vide which an application filed by the present petitioner under Order 26, Rule 9 of the Civil Procedure Code, for appointing a Local Commissioner to demarcate the suit land to ascertain as to whether the suit land stands encroached upon by the defendants or not, stands rejected by the learned Court below. 2. Record demonstrates that the petitioner herein has filed a suit for permanent prohibitory injunction, praying therein that the defendants be restrained from interfering with the suit land and that a decree of mandatory injunction be passed, directing the defendants to remove the encroachment made by the defendants upon the suit land. 3. It is borne out from the record that application under Order 26, Rule 9 of the Civil Procedure Code was filed by the present petitioner for demarcation of the suit land as far back as in the month of October, 2015, i.e. the stage when the plaintiff had not even led their evidence. Learned counsel for the petitioner has submitted that the application was kept pending by the learned trial Court by observing that the prayer made in the same shall be considered at an appropriate stage as the same at that stage was premature. 4. As per learned counsel, in view of the order earlier passed by the learned trial Court on the application so filed under Order 26, Rule 9 of the Civil Procedure Code, on 20.4.2016, the act of the learned trial Court of rejecting the prayer so made by the present petitioner is per-se bad and not sustainable in the eyes of law because once the application filed by the petitioner was kept pending, it was incumbent upon the learned Court to have had allowed it and had the suit land demarcated in the interest of justice. 5. 5. On the other hand, learned Senior Counsel for the respondent has argued that though, it is a matter of record that the application filed under Order 26, Rule 9 of the Civil Procedure Code by the present petitioner was kept pending by the learned trial Court, however, there was no assurance given by the learned trial Court that at a subsequent stage, the same shall be allowed. All that the Court observed vide order dated 20.4.2016 was that the application shall be considered at an appropriate time and appropriate adjudication on the same will be made. He has further argued that a perusal of the order passed by the learned trial Court dated 18.3.2019, which stands impugned by way of this petition, demonstrates that the same is a reasoned and speaking order and learned trial Court has assigned valid and cogent reasons as to why the application filed by the present petitioner has not been allowed by it. Learned Senior Counsel has argued that learned trial Court has rightly held that it was an established principle that the Local Commissioner cannot be appointed for the purpose of determining possession nor it was the duty of the Court to collect evidence on behalf of either of the parties. He has thus prayed for dismissal of this petition. 6. He has also argued that even otherwise also in the facts of the case, there was no need for appointment of a Local Commissioner in terms of order 26, Rule 9 of the Civil Procedure Code, because in between the plot of the petitioner and the respondents, there is another plot and therefore, it cannot be said that the dispute between the parties is a boundary dispute. 7. I have gone through the impugned order and have also gone through the documents appended with the petition. I have also heard learned counsel for the parties at length. 8. The allegation of the petitioner against the present respondents is that of encroachment. It is settled principle of law that he who alleges has to prove. Meaning thereby, that if it is the case of the petitioner/plaintiff that the suit land stands encroached upon by the respondents/defendants, onus is upon the petitioner to prove the said fact by bringing on record cogent evidence. It is settled principle of law that he who alleges has to prove. Meaning thereby, that if it is the case of the petitioner/plaintiff that the suit land stands encroached upon by the respondents/defendants, onus is upon the petitioner to prove the said fact by bringing on record cogent evidence. As this Court has earlier also held, Order 26, Rule 9 of the Civil Procedure Code is not a provision, which any party is entitled to invoke to fill up lacuna in its by attempting to bring on record such evidence, which otherwise, it has failed to. 9. During the course of argument, this aspect of the matter could not be disputed by learned counsel for the petitioner that there is a plot of the person from whom the land has been purchased by the present petitioner between the plot of the petitioner and the respondents. 10. As I have already observed above, as it is the allegation of the petitioner that respondents have encroached upon the government land, it is for the petitioner to prove this fact and for this purpose, Local Commissioner cannot be appointed by the Court to collect evidence for either parties. 11. There is noting on record to demonstrate that the petitioner approached the Revenue Authorities for demarcation of the suit land subject matter of the dispute, however, the Revenue Authorities did not entertain the request of the petitioner for demarcation of the land. 12. In these circumstances, this Court does not finds any perversity with the order passed by the learned trial Court which stands impugned in this petition, whereby the application filed by the petitioner for appointment of a Local Commissioner has been dismissed. This Court concurs with the findings returned by the learned trial Court, that Local Commissioner cannot be appointed for determining the possession, nor it is the duty of the Court to collect evidence on behalf of either of the party. 13. At this stage, learned counsel for the petitioner has placed reliance upon reported judgment passed by the Coordinate Bench of this Court in CMPMO No.261 of 2017 titled as Kangru Ram Versus Sriram, dated 21.3.2018. 14. I have carefully perused the judgment passed by the Hon'ble Coordinate Bench of this Court. 13. At this stage, learned counsel for the petitioner has placed reliance upon reported judgment passed by the Coordinate Bench of this Court in CMPMO No.261 of 2017 titled as Kangru Ram Versus Sriram, dated 21.3.2018. 14. I have carefully perused the judgment passed by the Hon'ble Coordinate Bench of this Court. In my considered view, the judgment passed by the Hon'ble Coordinate Bench of this Court is of no assistance to the petitioner as the said judgment was passed in the facts of the said case. In the present case, the factual position is completely different. Neither the petitioner has placed anything on record to demonstrate that he has acted vigilantly by approaching the Revenue Authorities for demarcation of the land, yet no action has been taken by the Revenue Authorities and further it is borne out from the record that the dispute between the petitioner and respondents is not a boundary dispute because there is the land of a third party between the properties of the petitioner and the respondent. 15. In view of the findings returned hereinabove, as this Court does not finds any merit in the present petition, the same is accordingly, dismissed. Pending miscellaneous application(s), if any, shall also stand disposed of.