The main legal point established in the judgment is the necessity of appointing a Local Commissioner in a boundary dispute to resolve the dispute effectively.

CHANDER BHUSAN BAROWALIA, J.

1. The present petition, under Article 227 of the Constitution of India, is maintained by the petitioner/plaintiff (hereinafter to be called as “the plaintiff”), for quashing the order dated 19.05.2017, passed by learned Civil Judge (Jr. Div.), Court No. 4, Hamirpur, H.P., in CMA No. 375 of 2013, Civil Suit No. 120 of 2012, whereby an application, under Order 26, Rule 9, read with Section 151 CPC, for appointment of the Local Commissioner, was dismissed.

2. Briefly stating facts giving rise to the present petition are that the plaintiff filed an application before the leaned Court below, under Order 26, Rule 9, read with Section 151 CPC, wherein he alleged that the respondent/defendant is adjoining owner, having Khasra No. 208 and he dug the suit land and raised construction in the shape of steps and also blocked the drain/challa of the plaintiff. It has been further averred in the application that since main dispute inter se the parties is boundary dispute, the appointment of Local Commissioner is necessary as it will enable the Court to give specific findings. Lastly, the plaintiff prayed that the present application may be allowed and Local Commissioner to demarcate the suit land and to report the nature and extent of encroachment, may be appointed.

3. In reply to the application, the respondent/defendant has averred that this application is not maintainable, as the plaintiff has not produced any evidence and now moved the application. Further the application of the plaintiff cannot be allowed, as the same will amount to create evidence in favour of the plaintiff. Lastly, the respondent/defendant prayed for dismissal of the application with costs.

4. Learned Court below vide its order dated 19.05.2017, dismissed the application, so filed by the plaintiff, hence the present petition.

5. I have heard the learned counsel for the parties and have gone through the record carefully.

6. Learned Senior Counsel appearing on behalf of the petitioner has argued that the application, under Order 26, Rule 9, read with Section 151 CPC, was required to be allowed in order to decide the real controversy inter se the parties, as it is a boundary dispute and it cannot be decided without there being report of the Local Commissioner. He has further argued that as per the law laid down by Hon’ble Supreme Court and this Hon’ble Court, when there is a boundary dispute, the Local Commissioner is required to be appointed to resolve that dispute. In support of his contentions, learned Senior Counsel has placed reliance upon the following judicial pronouncements:

1. 2008 (8) SCC 671, titled as Haryana Waqf Board vs. Shanti Sarup and others.

2. 2002 (3) SLC 131, titled as Bali Ram vs. Mela Ram and another.

3. Latest HLJ 2006 (HP) 5, titled as Prithi Singh vs. Sakshi Ram and another.

7. A Division Bench of Hon’ble Supreme Court in Haryana Waqf Board vs. Shanti Sarup and others, (2008) 8 SCC 671, have held as under:

5. The appellate court found that the trial court did not take into consideration the pleadings of the parties when there was no specific denial on the part of the respondents regarding the allegations of unauthorised possession in respect of the suit land by them as per Para 3 of the plaint. But the only controversy between the parties was regarding demarcation of the suit land because the land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial Court was wrongly rejected.

6. It is also not in dispute that even before the appellate court, the appellant Board had filed an application for appointment of a Local Commissioner for demarcation of the suit land. In our view, this aspect of the matter was not at all gone into by the High Court while dismissing the second appeal summarily. The High Court ought to have considered whether in view of the nature of dispute and in the facts of the present case, whether the Local Commissioner should be appointed for the pur