JUDGMENT : VIVEK SINGH THAKUR, J. 1. Present petition has been preferred against order dated 03.09.2021 passed by Civil Judge, Court No. IV, Hamirpur, H.P. in CMA No. 145 of 2021, in Civil Suit No. 487 of 2017, titled as Ramesh Chand @ Ramesh Kumar vs. Kamla Devi and Others, whereby an application preferred by the petitioner-plaintiff, under Order 26 Rule 9 of Code of Civil Procedure (in short ‘CPC’) read with Section 75 of CPC, has been dismissed on the ground that in the application petitioner-plaintiff had virtually requested the Court to collect the evidence and the provisions under Order 26 Rule 9 CPC cannot be used for the said purpose. 2. Petitioner-plaintiff has filed suit for declaration that he is absolute owner in possession of land comprised in Khasra No. 3331/1510, 1511 and has right over the path to this land through the land comprised in Khasra No. 1521, 1522 and 1523, situated in Tika Up-Mahal Gaura, Rappa Bajuri, Tehsil and District Hamirpur, H.P., and for Permanent Prohibitory Injunction against respondents-defendants from obstructing the path in question and for mandatory injunction, if respondents-defendants succeed in obstructing the said path. 3. During pendency of the suit, an application under Order 26 Rule 9 CPC was filed by the plaintiff for appointing Local Commissioner with averments that despite interim stay order, respondents-defendants had wrongly and illegally started construction work of walls over the path over the suit land with intention to block path leading to the house of the petitioner-plaintiff duly shown in Site Plans Ex.PW.1/A, Ex.PW.3/A and Ex.PW.3/B. It was further stated that when respondents-defendants did not pay heed to the request of the petitioner-plaintiff to obey the stay order and did not stop work, petitioner-plaintiff had filed an application in the Police Station Hamirpur, which was entered as G.D. No. 23, dated 04.04.2021, but no action was taken by the police except directing the petitioner-plaintiff to approach the Civil Court for redressal of his grievances. 4. With aforesaid facts, on 06.04.2021, application under order 26 Rule 9 CPC was filed with prayer to appoint Local Commissioner with direction to visit the spot and to report about nature and extent of construction being raised by the respondents-defendants over the suit land. 5. 4. With aforesaid facts, on 06.04.2021, application under order 26 Rule 9 CPC was filed with prayer to appoint Local Commissioner with direction to visit the spot and to report about nature and extent of construction being raised by the respondents-defendants over the suit land. 5. In response to the application, respondents-defendants had contended that they had their residential house over the suit land which was inhabited by them and land was four walled much prior to filing of the suit and there was no passage of the petitioner-plaintiff over the suit land. However, status quo qua nature and possession passed by the Court was maintained by them and the application was meritless. 6. Learned counsel for the petitioner-plaintiff referring Haryana Waqf Board vs. Shanti Sarup and Others, (2008) 8 SCC 671 , has submitted that in present case also parties had adjacent lands and, therefore, appointment of Local Commissioner was necessary for elucidating the matter in dispute. Further that application has not been filed for collecting evidence, but for elucidating the matter in dispute regarding which evidence has already been placed on record as a Map issued by Municipal Council, Report of Municipal Council and report of police, wherein path has been shown in the Map and Municipal Council has issued notice to the respondents-defendants not to obstruct the path and the police has advised the petitioner-plaintiff to approach the Civil Court and, therefore, to make the things more clearer by explaining it through Local Commissioner, Trial Court should have allowed the application. 7. Learned counsel for the respondents-defendants has opposed plea of the petitioner-plaintiff on the ground that application is not for demarcation or resolving boundary dispute, but is for collecting evidence with respect to nature and extent of construction being raised by the respondents-defendants over the suit land. Whereas, claim of the respondent-defendants is that they have already raised construction much prior to filing of the suit. 8. Learned counsel for the petitioner-plaintiff has submitted that irrespective of prayer made in the application, the Court is vested with power for appointment of Local Commissioner suo motu if it is deemed necessary that a Local investigation is required and is proper for the purpose of elucidating any matter in dispute and it is not necessary that either or both parties must apply for issuance of Commission. It has been contended that in present case also, to elucidate matter in dispute with respect to existence of path and to verify the fact of availability of alternative approach to the petitioner-plaintiff, Local Commissioner should have been appointed and it would have facilitated the Court to arrive at a right conclusion. Further that extent of construction raised by the respondents-defendants over the suit land is a fact required to be elucidated by appointment of Local Commissioner. 9. Learned counsel for the petitioner-plaintiff to substantiate claim for appointment of Local Commissioner, has also referred judgments in Jeet Ram alias Meet Ram vs. Sita Ram and Others, Latest HLJ 2002 (HP) 1173, Moti Ram vs. Tikam Ram, Latest HLJ 2010 (HP) 711 and Jagdish Ram vs. Vishwamitter and Others, Latest HLJ 2012 (HP) 1427. 10. In Haryana Waqf Board’s case, there was boundary dispute and the controversy between the parties was regarding demarcation of land, who were having adjacent lands. In present case, parties are having adjacent lands. Though application has not been filed for demarcation of the land to ascertain the location and existence of path referred in the plaint, but the application has been filed to report with respect to extent of construction being raised by the respondents-defendants in the suit land. It was alleged that respondents-defendants were raising construction in violation of order passed by the Court, but respondents -defendants were claiming no fresh construction and at one hand they were denying existence of path, on the other hand, they were claiming that they were maintaining interim order passed by the Court. Therefore, appointment of Local Commissioner, as prayed, would be a valid and appropriate exercise because though prayer in the application may not be happily worded but report with respect to construction being raised would have elucidated regarding existence of path. It is true that as on date there may not be any construction being raised by the respondents-defendants, but report with respect to nature and extent of construction raised by respondents-defendants would definitely help the Court to arrive at right conclusion. 11. In Bali Ram vs. Mela Ram and another, AIR 2003 HP 87 , Local Commissioner was directed to be appointed to investigate and report about actual and factual position about the path, construction etc., if any, on the suit land. The prayer made in present case though in different words but means the same. 11. In Bali Ram vs. Mela Ram and another, AIR 2003 HP 87 , Local Commissioner was directed to be appointed to investigate and report about actual and factual position about the path, construction etc., if any, on the suit land. The prayer made in present case though in different words but means the same. 12. Learned counsel for the petitioner-plaintiff has submitted that Court has suo motu power to modify the relief and to appoint Local Commissioner to verify the existence/non-existence of path/alternative path available to the petitioner-plaintiff. 13. Keeping in view the backdrop of filing the application and nature of the prayer made in the application, I find favour for issuing direction to appoint Local Commissioner by exercising such power vested in the Court. 14. In the given facts and circumstances, prayer made in the application for appointment of Local Commissioner has not lost its relevancy as on date and, therefore, I consider it fit to issue direction to appoint Local Commissioner with respect to payer made in the application with reference to elucidate the nature and extent of construction with impact on the rival claim of parties with respect to existence of path. Because being adjacent land owners with claim of path on the suit land alleging obstruction thereon by the respondents-defendants which is denied by respondents-defendants dispute is akin to boundary dispute. As Local Commissioner shall investigate and report about actual and factual position about path, construction, if any, thereon and non existence or existence of alternative path leading to the house, if any and such exercise, by elucidating the factual position, shall definitely help the Court to adjudicate the suit efficaciously and properly to substantiate justice. Accordingly impugned order is set aside. Trial Court is directed to pass an order for appointment of Local Commissioner, in accordance with law, keeping in view the law laid down by this Court as well as Supreme Court and considering the provisions for conferring power upon the Court to appoint Local Commissioner. 15. With aforesaid observations, petition is allowed, so also pending applications, if any.