The provisions of Order 26 Rule 10-A of CPC cannot be used as a tool to create evidence in favor of the parties. Local investigation or scientific/technical report is not necessary for elucidating any matter in dispute when the revenue authorities have already identified the land involved in the suit.

JUDGMENT

Kuldeep Mathur, J. - By way of this petition, the petitioner-plaintiffs have prayed for following reliefs:

"1. This writ petition may kindly be allowed and the impugned order dated 16.01.2018 and 20.02.2018 (Annexure-5 & 6) may kindly be quashed and set aside and the application filed under Order 26 Rule 9 of CPC may kindly be allowed.

2. Any other writ, direction or order which is deemed to be just and proper in the circumstances of this case may kindly be passed in favour of the petitioners.

3. Costs of the writ petition may kindly be awarded in favour of petitioners."

2. Briefly stated facts of the case are that a suit for permanent mandatory injunction bearing Civil Case No. 7/2014 was filed with an application under Order 39 Rule 1 and 2 of CPC by the petitioner-plaintiffs praying that the respondents-defendants may be restrained from creating any disturbance in their title and possession over the property. During the pendency of the suit, the petitioner-plaintiffs filed an application under Order 26 Rule 9 and 10-A of CPC seeking appointment of Tehsildar, Girwa as Commissioner for locating the exact nature and measurements of land through scientific measures by fixing boundaries of the suit property.

3. In the reply, respondent Nos. 3 and 4 submitted that the petitioner-plaintiffs had filed a civil suit for grant of perpetual injunction claiming ownership and possession over the land in dispute on the basis of sale agreement, which does not confer any title in their favour. It was further submitted that the petitioner-plaintiffs have illegally trespassed over the land belonging to UIT and raised construction of a wall with a height of 7-ft. without obtaining permission, amounting to illegal construction. It was asserted that a site inspection had been conducted on 26.08.2013 by the concerned Patwari in which he found the petitioner-plaintiffs to be in possession of land in excess to the khatedari land. Further, illegal construction has been raised by encroaching upon the land of the Trust for which cases have been registered.

4. The learned trial court vide impugned orders dated 16.01.2018 and 20.02.2018 rejected the applications filed by the petitioner-plaintiffs under Order 39 Rule 7 read with Order 26 Rule 9 of CPC and Order 26 Rule 10-A of CPC respectively. The trial court in its order dated 16.01.2018 opined that appointment of commissioner for the purpose of elucidating the matter in dispute is not necessary because dispute regarding title over the land cannot be decided by way of appointment of commissioner. It was also opined that commissioner cannot be appointed for the purpose of collecting evidence because the onus to collect and produce evidence rests on the party itself. The trial court in the order dated 20.02.2018 observed that the petitioner-plaintiffs have already constructed a house as well as a boundary wall on the suit property, therefore, there is no dispute with regard to demarcation or identification of the land. The only question that requires adjudication in the suit is the ownership of disputed land. The trial court noticed that the application under Order 39 Rule 7 r/w Order 26 Rule 9 CPC had already been rejected vide order dated 16.01.2018 therefore, another application under Order 26 Rule 10-A CPC could not be accepted.

5. Learned counsel for the petitioner-plaintiffs vehemently submitted that the dispute involved in the civil suit pertains to measurement of the land in dispute and the same can be resolved by appointing commissioner to make scientific or technical investigations. Learned counsel further submitted that trial court committed an error in passing the impugned orders as it failed to consider that scientific investigations would provide actual demarcation and measurements of the land in dispute for ensuring that no encroachment has taken place. Further, the Commissioner's report cannot be treated as evidence and therefore, no prejudice would be caused to the respondent-defendants