The burden of proof to establish encroachment lies with the plaintiff, who must prove the encroachment through independent evidence.

ORDER :

1. The plaintiff-petitioner has filed a suit for permanent prohibitory injunction for restraining the defendants, their servants, legal representatives and assignees and other from dispossessing the plaintiff or cutting khair trees and other valuable trees during the pendency of the suit.

2. The plaintiff-petitioner filed an application for appointment of local commissioner on the ground that it was necessary to appoint local commissioner in order to elucidate how much and in what manner the defendants have occupied the suit land. It was further contended that the defendants-respondents had cut the khair trees over the suit land and removed the boundary wall, as a result whereof the applicant had been dispossessed from the portion of the suit land. Thus, in order to know that how much of the area has now been illegally occupied by the respondents-defendants, the appointment of the local commissioner is absolutely necessary.

3. The application so filed by the petitioner-plaintiff was contested by the defendants-respondents and in their reply, it is submitted that they had sought for demarcation and obtained report on 20.07.2003 through Tehsildar which was confirmed by SDM on 05.11.2013 in the presence of the applicant-plaintiff, which showed the suit land. Earlier also a civil suit filed by the applicant-plaintiff was dismissed and order was upheld by the learned District Judge. It was claimed that the applicant/plaintiff has concealed the material facts and on this ground alone the application should be dismissed.

4. The learned Court below after taking into consideration the rival contentions put-forth by the parties came to the conclusion that once the petitioner-plaintiff has filed a suit for permanent prohibitory injunction against the defendants-respondents, then it was for the plaintiff- petitioner to establish his case to make sure about his boundary, he should have obtained a demarcation from the revenue authority to establish his claim. It is after all the burden of proof was upon him to prove his cause of action and by moving this application, what plaintiff was in fact using the process of the Court for gathering evidence for him, which is not permissible for him.

5. For coming to this conclusion, the learned Court below relied upon the judgment rendered by this Court in Pawan Kumar vs. Pardeep Kumar, LHLJ 2015 (HP) 998. In addition thereto, the learned Court below had also relied upon the judgment rendered by this Court in Diwakar Dutt vs. Ranjit Singh, 1997 SLJ 242 to hold that when suit has been filed on the premises that respondent has made an encroachment, recourse cannot be had to the appointment of Local Commissioner for demarcating the suit land and it has to be established by the applicant by leading independent evidence.

6. To similar effect, reliance was also placed upon yet another judgment rendered by this Court in Jeet Ram vs. Sita Ram, 2002 HLJ 1172.

7. Lastly, the learned Court below had also placed reliance upon the judgment rendered in CMPMO No. 272 of 2019, titled as Ram Nath and Another vs. Kuldeep Singh and Others, decided on 25.06.2019, wherein it was reiterated that when a party intend to prove encroachment on the part of other party, the burden to prove the same lies upon him and the applicant cannot be permitted to have appointed a Local Commissioner simply because he has not been able to lead cogent evidence to prove his case.

8. The order passed by the learned Court below is not only well reasoned but is based upon correct application of law as laid down by this Court.

9. Consequently, I see no merit in this petition and the same is accordingly dismissed.