Point of Law: Rule 9 of Order 26 of Code of Civil Procedure empowers Court to issue commission to make local investigation which may be required for purpose of elucidating any matter in dispute.

JUDGMENT :

Vivek Singh Thakur, J.

This Regular Second Appeal has been preferred by plaintiff against judgment and decree dated 10.3.2006 passed by District Judge, Una in Civil Appeal No. 83 of 2003, titled Santosh Kumari Vs. Malkiat Singh and others, whereby judgment and decree dated 21.8.2003 passed in Case No. 285/I of 1999, titled as Santosh Kumari Vs. Malkiat Singh and others, dismissing the suit of the plaintiff for permanent prohibitory injunction and for permanent injunction, has been affirmed.

2. Case of the plaintiff, in brief, is that she is owner in possession of Khasra No. 5064/3 and 5064/2 measuring 0-09-99 hectares situated in village Bhera, Tehsil Amb, District Una, H.P. which was purchased by her from defendant No. 1 through registered sale deed dated 18.6.1999, whereas defendants have no right, title or interest in the suit land and defendants No. 2 and 3 causing interference in the suit land and further that during pendency of suit they have forcibly encroached upon the suit land marked as letters A, B, C, D and E which is part of suit land compromised in Khasra No. 5064/2 and, therefore, plaintiff has prayed for decree for permanent prohibitory injunction with possession of portion encroached upon, referred supra.

3. Defendants No. 2 and 3 have contested the suit, denying the allegations of causing any interference by them in the suit land, but with claim that they are in possession of their own land comprised in Khasra No. 5064/2001, which was purchased by defendant No. 2 from defendant No. 1 and he has laid foundations over this land upon which plaintiff has no right, title and interest. It is further case of the defendant that plaintiff had filed an application for correction of revenue record, which was dismissed by Settlement Officer Dharamshala, H.P.

4. It is an admitted fact that earlier also, plaintiff had filed a suit for permanent injunction against defendants No. 2 and 3, which was dismissed as withdrawn on the basis of statement made by defendants No. 2 and 3 that they had no right, title or interest in the suit land.

5. Claim of plaintiff is that she has seven meters front alongside the road and defendants No. 2 and 3 are interfering and have encroached upon the portion of her land, whereas claim of the contesting defendant is that there is front of 25 meters on the side of the road of the whole of the land comprised in Khasra No. 5064/1, 5064/2 and 5064/3 and out of which defendant No. 2 has 18 meters front and the plaintiff has 7 meters front and the defendants are neither interfering nor have encroached upon the land owned and possessed by the plaintiff.

6. Plaintiff’s claim is based mainly on the report of Local Commissioner-Kanungo Amar Nath, who has been examined as PW-2. His report Ex. P-1 has been discarded by the Courts below on the ground that the said report was self contradictory as on one hand he has stated that record is not correct and, therefore, no demarcation could be given and at the same time, he has also stated that foundation laid by defendant No. 2 were found in the land of plaintiff. He had also stated that demarcation could be given only after correction of revenue record.

7. It has also been recorded by learned District Judge that application moved by the plaintiff to the Settlement Officer for correction of revenue record was dismissed by the Settlement Officer after inquiry on finding that there was no error in the revenue record and the revenue record prepared during settlement was correct.

8. From the pleadings of parties and evidence led by them it is quite clear that dispute in present case is a boundary dispute related to adjacent land holdings owned and possessed by plaintiff and defendant No. 2 respectively. Report of the Local Commissioner has been found to be not only vague, but contrary because at the one hand he has expressed his inability to demarcate the land with observation that it can be demarcated only after correction of revenue entries and on the other hand