The onus of proving allegations lies with the party making the claim, and provisions for appointment of a Local Commissioner should not be misused to create evidence in favor of the parties.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this petition filed under Article 227 of the Constitution of India, the petitioners have challenged order, dated 11.03.2019, passed by the Court of learned Civil Judge (Junior Division), Jawali, District Kangra, H.P., in CMA No. 61/2019 in Civil Suit No. 115/2016, titled as Harnek Singh Vs. Naseeb Deen and another, vide which an application filed by the respondent herein under Order XXVI, Rule 9 of the Code of Civil Procedure (hereinafter referred to as 'the Code') for appointment of a Revenue Officer as a Local Commissioner stands allowed.

2. Brief facts necessary for the adjudication of the present case are that respondent/plaintiff has filed a suit against the petitioners/defendants seeking a decree of injunction for restraining the defendants from raising any construction, dispossessing, interfering, cutting, felling and removing the trees standing upon the suit land. In the alternative, the plaintiff has also prayed for possession of the suit land. The suit has been filed in October, 2016.

3. During the pendency of the said suit, the plaintiff has filed an application under Order XXVI, Rule 9 of the Code for appointment of any Revenue Officer of Tehsil Fatehpur or Sub Division Jawali as Local Commissioner for locating the exact nature and extent of encroachment by the defendants and fixing boundaries of the suit land. It was averred in the application that the parties were having strained relation with each other; despite a status quo order having been passed, the defendants were interfering in the suit land; and they were also encroaching upon the suit land, hence appointment of a Local Commissioner was necessary for locating the exact nature and extent of encroachment by the defendants.

4. The application was resisted by the defendants, inter alia, on the ground that it was always open to the plaintiff to have had approached the Revenue Authorities for getting the land demarcated and the Court is not to create evidence for either of the parties. It was further the case of the defendants that they were not interfering in the suit land nor they had any intention to do so and they were in possession of their property pursuant to the recent partition having entered into between the parties and the plaintiff was estopped from filing the application. It was denied by the defendants that they were encroaching upon the suit land, as alleged.

5. Vide impugned order, learned Trial Court has allowed the application so filed by the plaintiff under Order XXVI, Rule 9 of the Code by holding that as issues were not yet framed in the main suit and as proceedings in the case were at a preliminary stage, therefore, the Court was of the opinion that if a Local Commissioner in the case was appointed, no prejudice shall be caused to the defendants, rather it will help in the proper and final adjudication of the dispute between the parties.

6. Feeling aggrieved, the petitioners, who are the defendants before the learned Court below have filed the present petition.

7. Learned counsel for the petitioners has argued that the impugned order is not sustainable in the eyes of law, as the same has been passed by the learned Court below in a hot haste, without even realizing that as even the issues were not yet framed, there was no necessity of such an application being entertained by the learned Trial Court. Because it was the allegation of the plaintiff that the suit land stood encroached upon by the defendants, onus was upon him to prove the same and it was not for the Court to create evidence in favour of the plaintiff.

8. On the other hand, learned counsel for the respondent/plaintiff has argued that there is no perversity with the impugned order, as learned Court below has rightly allowed the application to put an end to the lis between the parties, because the demarcation if carried out, would demonstrate as to whether there is any encroachment upon the suit land or not and the same would assist the Court in th