The purpose of local investigation under Order 26 Rule 9 CPC is to elucidate facts in dispute, and the appointment of a Commissioner is discretionary and aimed at ascertaining the truth.

Tarlok Singh Chauhan, J.

1. This petition under Article 227 of the Constitution of India is directed against the order dated 11.4.2016 passed by learned Civil Judge (Junior Division), Chachiot at Gohar, District Mandi in Civil Suit No. 34 of 2010 whereby the application filed by petitioners for appointment of Local Commissioner came to be dismissed.

2. The facts giving rise to the instant petition are that the petitioners have filed a suit for possession on the basis of title with regard to the land comprised in Khewat No. 41, Khatauni No. 60, bearing Khasra Nos. 3, 4, 6, 8, 9, 13, 18, 19, 20, 21, 23, 24, 26, 32, 281 and 283, Kitas 16, measuring 22-18-05 bighas, situated in Mauza Dan, Hadbast No.120, Tehsil Chachiot, District Mandi, H.P. alleging therein that this land is jointly owned and possessed by the petitioners and others. The respondents since October, 2009 started causing unlawful interference over the land bearing Khasra Nos. 6, 8 and 9 for the purpose of raising construction of a house on some portion of this land and thereafter raised construction forcibly on some portion of Khasra Nos. 6 and 9 and started cultivating remaining of Khasra Nos. 8 and 9.

3. The respondents filed written statement-cum-counter claim wherein it was alleged that the revenue entry qua Khasra No. 8, measuring 0-1-6 bigha was wrong, illegal and null and void. It was further alleged that there was residential house of the respondents over Khasra Nos. 8 and 11 since the time of their predecessor-in interest. It was also alleged that the petitioners in connivance with the consolidation officers wrongly and illegally got the suit land allotted in their favour.

4. The petitioners had earlier filed an application under Order 26 Rule 9 CPC for the appointment of Local Commissioner, but the same was kept pending and thereafter another application under Section 151 CPC was filed by the petitioners for passing orders on the aforesaid application. It was contended that the respondents have forcibly occupied some portion of the suit land and had also raised construction upon it and in order to prove this fact, they had moved an application before the Tehsildar Chachiot at Gohar and the same was forwarded to the Field Kanungo for demarcation of the entire suit land and to supply the spot map of the same, but the Field Kanungo refused to do the same and due to this reason the spot map could not be obtained.

5. The respondents filed reply to this application denying the forcible occupation of the suit land and also questioned the maintainability of the application itself apart from denying all other contents thereof.

6. The learned Court below dismissed this application on two scores: (i) that the petitioners intend to collect evidence in their favour and; (ii) that there was no boundary dispute between the parties as would be evident from the following observations:

“….In this case, the applicants have pleaded that they are owners of the suit land however, it is possessed by the respondents. The respondents on the other hand have admitted their possession over the suit land. Demarcation of the suit land was already conducted which has not been set aside by any competent authority. The applicants were relying upon the aforesaid demarcation. In order to support their claim they have examined PW-2 for proving the demarcation report. After conclusion of the evidence the applicants have filed this application on the ground that Local Commissioner who was appointed by A.C. 1st Grade had not conducted the investigation in accordance with law. Thus, the applicants by way of this application under Order 26 Rule 9 of Civil Procedure Code are intending to collect evidence in their favour. Certainly, by way of an application under Order 26 Rule 9 of Civil Procedure Code, this Court cannot allow a party to collect evidence in order to fill up the lacuna. The respondents have already admitted the possession. There is no boundary dispute in between the parties. The