Appointment of a Local Commissioner to demarcate the land in a boundary dispute is necessary and does not amount to collecting evidence on behalf of either party.

V. M. Jain, J.: This petition under Article 227 of the Constitution of India has been filed by the plaintiff-petitioner against the order dated 17.8.2005 passed by the trial Court, dismissing the application of the plaintiff under Order 26 Rule 9 CPC for appointment of a Local Commissioner.

2. The facts which are relevant for the decision of the present petition are that Prithi Singh plaintiff had filed a suit for permanent prohibitory injunction claiming himself to be the owner in possession of the suit land and alleging therein that the defendants were total strangers and had no right to raise any construction etc. thereon and as such the defendants be restrained from raising any construction etc. over the suit land. In the alternative, it was prayed that in case the defendants succeed in raising construction over the suit property or occupying any portion thereof, then a decree for possession by way of demolition of such construction be passed. The suit was contested by the defendants alleging that the defendants had no concern with the land of the plaintiff. It was alleged that in fact the suit land and the land of the defendants adjoined each other and there was an old maind on the boundary which was still in existence. It was further alleged that the defendants were not raising any construction over the suit land and, on the other hand, the defendants had constructed their house in the year 1992-93 and at that time no objection was raised by the plaintiff. It was further alleged that so far as the stairs are concerned, the defendants had constructed the same much prior to the filing of the present suit with no objection having been raised by the plaintiff. It was alleged that the defendants were recorded owners of the adjoining khasra numbers.

3. During the pendency of the suit, the plaintiff filed an application under Order 26 Rule 9 CPC for appointment of a Local Commissioner to demarcate the land at the spot. It was alleged that the basic dispute between the parties was regarding the boundary and as such in order to adjudicate the matter in controversy the appointment of a Local Commissioner was must and no prejudice will be caused to the other side if the Local Commissioner was appointed. The said application was contested by the defendants by filing a reply. It was alleged that there was no need to appoint a Local Commissioner and that boundary of the land of the parties in the shape of old mind was still on the spot.

4. After hearing both the sides and perusing the record, the learned trial Court vide" order dated 17.8.2005, dismissed the application of the plaintiff under Order 26 Rule 9 CPC. Aggrieved against the same, the plaintiff-petitioner filed the present petition under Article 227 of the Constitution of India in this Court.

5. Notice was issued to the respondents. However, the respondents refused to accept the same and the summons were affixed at their house. No one came present on their behalf. Hence, they were proceeded against ex-parte.

6. After hearing the learned counsel and perusing the record, in my opinion, the present petition must be allowed and the order dated 17.8.2005 passed by the learned trial Court must be set aside.

7. As referred to above, the dispute between the parties was in fact a boundary dispute. It could be solved only by demarcation, inasmuch as the land claimed by the plaintiff to be owned and possessed by him as different from the land claimed by the defendants to be owned and possessed by them and both the lands were adjoining each other. In such a situation, the only course open for the trial Court was to have appointed a Local Commissioner to visit the spot after issuing notice to both the parties and to demarcate the suit land in accordance with law. Instead of ordering the appointment of the Local Commissioner to demarcate the suit land, the learned trial Court proceeded to dismiss the application of the plaintiff under Order 26 Rule 9 CPC by taking the plea that the obj