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2019 DIGILAW 896 (HP)

Harbans Singh v. Jagat Ram

2019-07-08

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, Judge (Oral) By way of this petition filed under Article 227 of the Constitution of India, a prayer has been made for setting aside order dated 13.02.2019, passed by the Court of learned Civil Judge (Sr. Divn.), Nalagarh, District Solan, H.P. in CMA No. 169 of 2019, filed in Civil Suit No. 20-1 of 2013, titled as Harbans Singh and another versus Sh. Jagat Ram and others, vide which, an application filed by the present petitioners, who are the plaintiffs before the learned Trial Court, under Order 26, Rule 9 of the Code of Civil Procedure (hereinafter referred to as the =Code'), has been dismissed by the learned Trial Court. 2. Brief facts necessary for adjudication of the present case are that the petitioners (hereinafter referred to as the =plaintiffs') have filed a suit for permanent prohibitory injunction and mandatory injunction/possession against the defendants with regard to the suit land. At the stage of arguments, an application was filed by the plaintiffs under Order 26, Rules 9 and 10 of the Code for appointment of the Local Commissioner for fixing the boundary points of the suit land. It was mentioned in the application that the main dispute between the parties was with regard to fixation of the boundary and the litigation will not be resolved till the boundaries of the suit land are not fixed by an expert Revenue Officer by way of demarcation. Prayer was thus made in the application for appointment of some Revenue Officer as Local Commissioner to fix the boundaries of the suit land with adjoining land of the defendants. 3. This application was resisted by the non-applicants/defendants inter alia on the ground that no encroachment over the land of the plaintiffs by the defendants was there as alleged by the plaintiffs. It was further mentioned in the reply that defendants had raised construction in their own land. Earlier also, a Local Commissioner stood appointed to ascertain this fact and his report was on record. The Commissioner was summoned by the plaintiffs as their own witness and his report categorically demonstrated that defendants had raised construction on their own land. It was further mentioned in the reply that Local Commissioner could not be appointed to create evidence for a party as it was the duty of the parties to prove their respective cases. The Commissioner was summoned by the plaintiffs as their own witness and his report categorically demonstrated that defendants had raised construction on their own land. It was further mentioned in the reply that Local Commissioner could not be appointed to create evidence for a party as it was the duty of the parties to prove their respective cases. It was further mentioned in the reply that encroachment was to be proved by the party alleging it. 4. Said application stands dismissed by way of impugned order. Learned trial Court while dismissing the application has held that the application was filed after the case was listed for final arguments and the report of the Local Commissioner so appointed by the Court stood tendered in the evidence in the statement of Kamlesh Kaur as Ext. P-40, which report was prepared by Shri D.S. Rana, Advocate. Learned Court below also held that even demarcation stood carried out by Assistant Collector, 2nd Grade, Nalagarh, after the case was remanded by the Collector, Sub Division, Nalagarh, vide order dated 26.09.2014, which was on record as Ext. P-39 and report of the Local Commissioner was prepared pursuant to the directions issued in this regard on an application filed under Order 26, Rule 9 of the Code. Learned Court below also held that the prayer for appointment of the Local Commissioner, did not in any manner touch the controversy involved in the suit because requisite evidence stood led by both the parties and at this stage, appointment of the Local Commissioner would tantamount to fill up the lacunae left in the evidence, which was not the purpose of appointment of Local Commissioner under Order 26, Rule 9 of the Code. On these bases, learned Trial Court dismissed the application. 5. Feeling aggrieved, the plaintiffs have filed the present petition. 6. Learned Senior Counsel appearing for the petitioner has vehemently argued that order passed by the learned Trial Court was not sustainable in the eyes of law because learned Court below has erred in not appreciating that as the dispute between the parties was a boundary dispute, therefore, in consonance with the well settled principles of law relating to Order 26, Rule 9 of the Code, it was in the interest of justice had a Local Commissioner been appointed to determine the boundary points between the land of the petitioners and the respondents. He further argued that reliance placed by the learned Trial Court on the earlier demarcation was mis-conceived because earlier demarcation stood carried out by a lawyer who was not a revenue expert and his demarcation will not help the adjudication of the case. 7. On the other hand, learned Senior Counsel appearing for the respondents has argued that there was no perversity with the order passed by the learned Trial Court because the application filed by the present petitioners under Order 26, Rule 9 of the Code stood rightly rejected by the learned Trial Court. He has further argued that filing of the application was nothing but the abuse of process of law. According to him, there was already on record not only the report of Shri D.S. Rana, Advocate, who was appointed as Local Commissioner to ascertain as to whether construction was being carried out by the defendants in their own land or in the land of the plaintiffs and there was also a demarcation report Ext. P-39 on record and in view of same, there was no necessity to further appointment another Local Commissioner on the request of the petitioners. He has also argued that the suit filed by the petitioners was for permanent prohibitory injunction and also for mandatory injunction and for this purpose, there was no need to appoint Local Commissioner to ascertain the boundary points of the respective lands of the parties and that too, at the stage when the case was being listed for the arguments as Order 26, Rule 9 of the Code could not be put to use by a party to fill up the lacunae. He thus urged that petition be dismissed. 8. I have heard learned Counsel for the parties and gone through the record of the case as also the impugned order. 9. It is not in dispute that there is on record before the learned Trial Court Ext. P-39, which is a demarcation report, carried out by Assistant Collector 2nd Grade, Nalagarh, pertaining to the suit land. 8. I have heard learned Counsel for the parties and gone through the record of the case as also the impugned order. 9. It is not in dispute that there is on record before the learned Trial Court Ext. P-39, which is a demarcation report, carried out by Assistant Collector 2nd Grade, Nalagarh, pertaining to the suit land. It is also not in dispute that in an application earlier filed under Order 26, Rule 9 of the Code and that too at the behest of the petitioners, one Shri D.S. Rana, Advocate, was appointed as Local Commissioner to ascertain as to whether construction being raised by the defendants is being raised by the defendants in their own land or not, who has submitted his report. This Court will not comment upon said Exhibits any further as the suit is pending before the learned Trial Court. In my considered view, filing of the subsequent application by the petitioners under Order 26, Rule 9 of the Code was mis-conceived. This is for the reason that because the suit filed by the petitioners is for permanent prohibitory and mandatory injunction, thus, onus is upon them to prove that there is any encroachment over the suit land or any construction has been illegally carried out by the other party over their land. This onus cannot be shifted by the petitioners upon the Court by calling upon the Court to appoint Local Commissioner under Order 26, Rule 9 of the code, purportedly, to ascertain the boundary points of the land of the parties. It is settled position of law that the purpose of appointment of the Local Commissioner under Order 26, Rule 9 of the Code is not to garner or gather evidence in favour of a party, but the same is to elucidate the factual basis and that too, if the Court deems it necessary so as to resolve the dispute between the parties in the facts of a case. 10. In the present case, learned Trial Court has rightly rejected the subsequent application filed by the present petitioners for appointment of Local Commissioner because when there already is on record a demarcation report as also a site report of the Local Commissioner, then obviously, petitioners could not be allowed to file another application for appointment of Local Commissioner with the prayer that boundary points of the parties be ascertained. Thus, this Court does not finds any perversity with the impugned order. In view of above discussion, as this Court does not finds any merit in the present petition, the same is accordingly dismissed. Pending miscellaneous application(s), if any, also stands disposed of. No orders as to costs.