The duty of the courts to appoint a local commissioner, especially in cases of boundary disputes, as per Order 26 Rule 9 CPC.

Sandeep Sharma, J.

1. By way of instant petition under Article 227 of the Constitution of India, prayer has been made for quashing and setting aside order dated 10.3.2017 passed by Civil Judge (Senior Division), Court No. 1, Hamirpur, Himachal Pradesh in Civil Suit No. 139/2012, whereby application having been filed by petitioner under Order 26 Rule 9 CPC, for appointment of local commissioner to demarcate suit property as well as adjoining path constructed by municipal Committee, Hamirpur, came to be dismissed.

2. Briefly stated the facts, as emerge from the record are that petitioner-plaintiff, filed a civil suit bearing No. 139/2012 for permanent prohibitory injunction, restraining the respondent-defendant from raising any construction or laying passage in suit land and in the alternative sought decree for mandatory injunction directing defendant to restore suit land to its original position, in case it succeeds in constructing passage, during the pendency of the suit.

3. It emerges from the record that plaintiff preferred an application under Order 26 Rule 9 CPC read with Section 151 CPC for appointment of local commissioner to demarcate suit land and submit its report with regard to nature and extent of encroachment, if any, over the land in dispute and existence of passage. Aforesaid application was contested by the defendant and learned Civil Judge (Senior Division), Court No. 1, vide order dated 6.4.2015, dismissed the application terming the same to be premature.

4. Perusal of order dated 6.4.2015 i.e. annexure P-3 clearly suggests that plaintiff specifically averred in the application that defendant is forcibly trying to construct passage over the suit land, while laying down passage in Khasra Nos. 1136 and 1139. Plaintiff, specifically submitted in the application that issue No. 2 as framed by the Court is with regard to mandatory injunction and as such, in order to ascertain encroachment done by the defendant over the suit land, some local commissioner is required to be appointed to demarcate the suit land, so that controversy at hand is decided for all times to come. Further perusal of order dated 6.4.2015, suggests that learned trial Court, taking note of the specific prayer/averments having been made by the plaintiff in the plaint that “in case during the pendency of the suit, defendant/respondent succeeds in constructing passage through suit land, then a decree for mandatory injunction be passed” came to the conclusion that no such construction has been raised by the defendant over any portion of suit land and as such, there is no question of ascertaining nature and extent of the encroachment of defendant over the suit land. Learned Court below, vide aforesaid order, dismissed the application having been preferred by the plaintiff, being premature. While dismissing the aforesaid application, trial Court further observed that in order to prove interference, if any, by the defendant over the suit land, plaintiff is required to lead evidence rather than taking help of the court in creating evidence in its favour.

5. It is not in dispute that aforesaid order was not challenged by plaintiff in any court of law, rather, same was accepted without any demur. Thereafter, plaintiff, vide fresh application being CMA No. 232/2016, again moved the Court under Order 26 Rule 9 CPC, for appointment of local commission to demarcate the suit land.

6. It is also not in dispute that aforesaid application came to be filed after closure of evidence of both the parties.

7. Defendant, while opposing aforesaid prayer having been made by the plaintiff for appointment of local commissioner only contended before the learned Court below that onus to prove issue is/was upon the parties as such, court can not create evidence for either of the parties, by ordering for appointment of local commissioner.

8. Learned Court below, vide order dated 10.3.2017, dismissed the application having been preferred by the plaintiff by concluding that suff