Karam Chand vs . Bhim Sain And Another
2023 Latest Caselaw 13347 HP

Karam Chand Vs. Bhim Sain and another

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RSA No. 286 of 2019

Order reserved on: 25.08.2023

12.09.2023 Present: Ms. Soma Thakur, Advocate, for the

applicant/appellant.

Mr. Sanjay Dutt Vasudeva, Advocate, for the non- applicants/respondents.

CMP No. 5736 of 2019

This order shall dispose of an application for the

appointment of a Local Commissioner to inspect the spot. It

has been asserted that the applicant has filed an appeal,

which is likely to be allowed. It was necessary for the learned

Courts below to appoint a Local Commissioner to decide the

controversy; however, no Local Commissioner was

appointed. The dispute between the parties related to the

boundaries and the appointment of a Local Commissioner is

necessary. Hence, the application.

2. The application is opposed by filing of reply, taking

preliminary objection relating to lack of maintainability. The

contents of the application were denied on merits. It was

asserted that the applicant wants to collect evidence by filing

the present application. The applicant was negligent in

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dealing with the matter before the learned Courts below. He

cannot be permitted to take benefit of his negligence. Hence,

it was prayed that this application be dismissed.

3. I have heard Ms. Soma Thakur, learned counsel

for the applicant/appellant and Mr. Sanjay Dutt Vasudeva,

learned counsel for the non-applicants/respondents and

have gone through the record carefully.

4. Ms Soma Thakur, learned counsel for the

applicant submitted that the appointment of a Local

Commissioner is necessary to adjudicate the controversy

between the parties; therefore, the present application be

allowed and a Local Commissioner be appointed to

demarcate the land.

5. Mr. Sanjay Dutt Vasudeva, learned counsel for

the non-applicants/respondents submitted that there is no

necessity to appoint the Local Commissioner. No such

application was filed before the learned Courts below; hence

he prayed that this application be dismissed.

6. I have given considerable thought to the rival

submissions at the bar and have gone through the record

carefully.

7. The plaintiff has filed a Civil Suit for Permanent

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Prohibitory Injunction for restraining the defendants from

obstructing him and his family members from passing

through the passage or raising any construction over the

land mentioned in the plaint. Learned Trial Court held that

the plaintiff had failed to prove the width of the path or the

obstruction caused to it. These findings were upheld by the

learned First Appellate Court and it was held that there was

no convincing and cogent evidence to establish that the

defendant was raising construction over the path. Thus, both

the learned Courts below have concurrently dismissed the

suit on the ground that the passage was not properly

identified and the construction thereon was not proved.

8. It was laid down by this Court in Diwakar Dutt

versus Ranjit Singh 1997 SLJ 242 that in a suit based on an

encroachment, recourse cannot be had to the Local

Commissioner, as the Court cannot create evidence in favour

of a party. It was observed:-

"4. It is too well-known that the Court is not expected to create evidence for any of the parties to the lis. It is for the plaintiff to prove that the defendant has encroached upon his land and he can do so by leading evidence as is permissible under the Evidence Act. The learned trial Court has held that no case has been made out for the appointment of a Local Commissioner to demarcate the suit land and in my

considered view, the order does not suffer from any

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illegality, irregularity or error of jurisdiction. Even

otherwise, the order would not amount to a case decided so as to call for interference under Section 115 of the Civil Procedure Code. I am supported in my

view by a Division Bench judgment of Punjab and Haryana High Court reported in 1990(2) S.L.J. 636 (Pritam Singh and another vs. Sunder Lal and others). There is, thus, no merit in this revision petition and

the same is hereby ordered to be dismissed. No costs."

9. This position was reiterated in Jeet Ram versus Sita

Ram 2002 HLJ 1173, wherein it was observed:-

"11. In Sanku Rango Rao, the plaintiff had filed a suit against the defendant alleging that the portion of the land of the plaintiff was encroached on by the

defendant. The plaintiff in that case relied upon the demarcation given by a private commissioner. However, the defendant filed an affidavit of the same

Commissioner along with his written statement stating that the defendant in fact had not made any

encroachment on the land of the plaintiff. This affidavit was contrary to the report of the commissioner given to the plaintiff. It is in these circumstances, that the court

took a view that the plaintiff could have recourse to the provision of the order 26 Rule 9 of the Code of Civil Procedure to have the Local Commissioner appointed by the court. The court referred to Indramani Behera v. Ghanshyam Behera (1960 (2) Cut. LT 398, where it was held that in a case where it is open to the party to take a private Commissioner for ascertaining the particular fact it would not be necessary for the court to do so since the commissioner's report whether appointed by the court or privately by a party is an item of evidence and not in the matter. Nevertheless, in view of the fact that the same Commissioner has given an affidavit in opposition to his report, the court allowed the appointment of the local Commissioner

12. In John's case the trial court allowed the appointment of a Local Commissioner before the written statement was filed. The contention was raised,

in the revision petition that the Local Commissioner

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could not have been appointed unless the defendant had

a chance to file the written statement. This contention was repelled and it was held that such was not the position in law. It was observed that in certain cases,

urgent commission may be necessary to avoid any other mischief and the defendant's right to have a local Commissioner can not be defeated on the ground that he has not filed the written statement.

13. Mr Kuthiala, also refers to Payani Achuthan vs. Chamballikudu Harijan Fisheries Development Co- operative Society and others (AIR 1996 Kerala 276). In this

case, the plaintiff had filed a suit for permanent injunction seeking restraint on the defendants from

encroaching upon the land of the plaintiff. An application for the appointment of a Local Commissioner for measurement and demarcation of the

land was filed, which was rejected on the ground that neither party had any grievance about the identity of areas in their respective possession and as such it was

not necessary to appoint a Commissioner. It is in these circumstances, it was held that in such a situation Local

Commissioner ought to have been appointed."

10. Similarly, it was held in Naseeb Deen and another

versus Harnek Singh, CMPMO No. 208 of 2019, decided on

19.7.2019 that the onus is upon the plaintiff to prove the

encroachment and when there is no evidence that the

plaintiff had approached the revenue authority for the

demarcation of the suit land, it is not permissible to appoint

the Local Commissioner to demarcate the suit land. It was

observed:

Having heard learned counsel for the parties, this Court is of the view that the impugned order is not sustainable

in the eyes of law. It is not in dispute that the

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application under Order XXVI, Rule 9 of the Code was

filed by the plaintiff before the learned Trial Court even before the issues stood framed by the learned Court below. It is the allegation of the plaintiff that the

defendants are encroaching /have encroached upon the suit land. It is a settled proposition of law that he who alleges has to prove. Meaning thereby, because it is the contention of the plaintiff that the defendants have

encroached upon the suit land or are encroaching upon the same, the onus is upon him to prove his case. There is no material on record to demonstrate that the plaintiff, at any stage, has approached the Revenue

Authorities, for demarcation of the land in issue. In

these circumstances, filing of the application by the plaintiff at the stage when not even issues were framed by the learned Trial Court, but obvious was an attempt to create evidence in his favour and this important

aspect of the matter has been completely overlooked by the learned Court below. In other words, in the present case, the learned Trial Court has fallen into the trap of

the plaintiff by allowing the application so filed by the plaintiff and this has let out a helping hand to the

plaintiff to create evidence in his favour at a stage when not even the issues were framed. 10. Order XXVI, Rule 9

of the Code, inter alia, provides that in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. Meaning thereby that it has to be the satisfaction of the Court that a local investigation is necessary or proper for the purpose of elucidating any matter in dispute. This provision is not a tool which is to be permitted to be used by the parties concerned to create evidence in their favour. This important aspect of the matter has also been lost sight of by the learned Trial Court while passing the impugned order.

11. This position was reiterated in Ram Nath versus

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Kuldeep Singh, CMPMO No. 272 of 2019, decided on 25.6.2019,

wherein it was observed:

Order 26, Rule 9 of the Code of Civil Procedure is not a panacea, which can be used by a litigant as a tool whenever the litigant feels that it is not in a position to

prove its case.

14. Order 26, Rule 9 of the Code inter alia provides that in any suit in which the Court deems a local

investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may

issue a commission to such person as it thinks fit directing him to such investigation and to report thereon to the Court.

15. In my considered view, primarily whenever any order is passed, under Rule 9 of Order 26 of the Code, the satisfaction has to be of the Court as to whether

local investigation for the purpose of elucidating any matter in dispute is necessary or not. This satisfaction

cannot be of the plaintiffs or defendants. The plaintiff or the defendant has to stand on its own legs and provisions of Order 26, Rule 9 of the Code cannot be

used to garner or gather evidence for them through the Court process. This is exactly what has been held by the learned Court below by way of the impugned order. Learned Court has held and rightly so that the onus is upon the plaintiffs to prove their case and the Court cannot lend a helping hand and assist the plaintiffs to prove their case. These findings returned by the learned Court below cannot be said to be illegal as they are in consonance with the spirit of the law with regard to the interpretation of Order 26, Rule 9 of the Civil Procedure Code. Plaintiffs cannot be permitted to a local commissioner appointed simply because they have not been able to lead cogent evidence to prove their case. That is not the intent of Order 26, Rule 9 of the Code.

12. In the present case, the applicant/appellant

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asserted that the non-applicants/respondents have

encroached upon the path and reduced its length. Thus, the

burden of proof was upon them to establish this fact and a

Local Commissioner cannot be appointed to demarcate the

land to assist the applicant.

13. Consequently, the present application fails

and the same is dismissed.

(Rakesh Kainthla) Judge

12th September, 2023 (Chander)