The possession of the petitioner over the suit land was not in dispute, and the age of apple plants would not prove actual possession, leading to the dismissal of the application for appointment of a Local Commissioner.

JUDGMENT

Jyotsna Rewal Dua, J. - The application moved by the petitioner/plaintiff under Order 26 Rule 9 of the Code of Civil Procedure (CPC), seeking appointment of Local Commissioner for ascertaining the age of apple plants statedly growing over the suit land, has not found favour with the learned Trial Court. Aggrieved, the petitioner has filed the instant petition.

2. Facts:-

2(i). The respondents issued a notice to the petitioner under the provisions of H.P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971 (in short 'Act'). The petitioner thereafter filed a civil suit with prayers, inter alia, that entries in the revenue record pertaining to the suit land are wrong, illegal, without jurisdiction and contrary to the provisions of law. It was further prayed that those revenue entries and the notice issued to the petitioner under the Act be declared as null and void.

2(ii). The suit filed by the petitioner/plaintiff was resisted by the respondent-State. For the purpose of present controversy, it be noted that the stand of the respondent-State in the written statement was that it was owner of the suit land for the last 50 years. The ownership of the State over the suit land was reflected in the revenue record. The petitioner/plaintiff and his predecessor had encroached over the government land for the last many years. It was further stated that the plaintiff being fully aware of the encroachment over the suit land, had applied for regularization of the same during the year 2002.

2(iii). Upon consideration of pleadings of the parties, issues were framed in the civil suit on 03.07.2017. The parties led evidence in support of their contentions. The entire evidence in the case was led by 20.03.2019. The matter thereafter was repeatedly fixed for arguments. On 13.01.2020, the petitioner/plaintiff moved an application under Order 26 Rule 9 CPC for appointing 'scientific Local Commissioner to investigate and ascertain the age of plants over the suit land'. The application was opposed by the respondents. It was finally dismissed by the learned Trial Court vide order dated 09.07.2021, which is impugned in the present petition.

3. Contentions:-

Learned counsel for the petitioner argued that the Local Commissioner is required to be appointed for ascertaining the age of apple plants standing over the suit land. This, according to learned counsel, is necessary not only to determine the possession of the petitioner over the suit land, but also to determine the date of commencement of said possession. Learned Additional Advocate General opposed the prayer and submitted that the provisions of Order 26 Rule 9 CPC are not met with in the instant case. Learned Additional Advocate General contended that the application is nothing, but an attempt to linger on the civil proceedings initiated by the petitioner/plaintiff to overcome the warrant of ejectment issued against him under the provisions of H.P. Public Premises Act.

4. Observations:-

Heard learned counsel for the parties and gone through the documents on record.

In terms of Order 26 Rule 9 CPC, in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a commission to such person as it thinks fit, directing him to make such investigation and to report thereon to the Court. Satisfaction that appointment of Local Commissioner is necessary, has to be that of the Court. In the facts of the case, possession of the petitioner over the suit land is not disputed by the respondent-State. The petitioner has pleaded his possession over the suit land, which fact has been admitted by the respondent-State in its written statement. The stand of the State is that the suit land is owned by the State of Himachal Pradesh. The land is recorded in the ownership of the State in the revenue record for past around fifty years. Possession of the petitioner is that of an encroacher. Since the possession of the