JUDGMENT :

VIVEK SINGH THAKUR, J.

1. Present petition has been preferred against order dated 03.09.2021 passed by Civil Judge, Court No. IV, Hamirpur, H.P. in CMA No. 145 of 2021, in Civil Suit No. 487 of 2017, titled as Ramesh Chand @ Ramesh Kumar vs. Kamla Devi and Others, whereby an application preferred by the petitioner-plaintiff, under Order 26 Rule 9 of Code of Civil Procedure (in short ‘CPC’) read with Section 75 of CPC, has been dismissed on the ground that in the application petitioner-plaintiff had virtually requested the Court to collect the evidence and the provisions under Order 26 Rule 9 CPC cannot be used for the said purpose.

2. Petitioner-plaintiff has filed suit for declaration that he is absolute owner in possession of land comprised in Khasra No. 3331/1510, 1511 and has right over the path to this land through the land comprised in Khasra No. 1521, 1522 and 1523, situated in Tika Up-Mahal Gaura, Rappa Bajuri, Tehsil and District Hamirpur, H.P., and for Permanent Prohibitory Injunction against respondents-defendants from obstructing the path in question and for mandatory injunction, if respondents-defendants succeed in obstructing the said path.

3. During pendency of the suit, an application under Order 26 Rule 9 CPC was filed by the plaintiff for appointing Local Commissioner with averments that despite interim stay order, respondents-defendants had wrongly and illegally started construction work of walls over the path over the suit land with intention to block path leading to the house of the petitioner-plaintiff duly shown in Site Plans Ex.PW.1/A, Ex.PW.3/A and Ex.PW.3/B. It was further stated that when respondents-defendants did not pay heed to the request of the petitioner-plaintiff to obey the stay order and did not stop work, petitioner-plaintiff had filed an application in the Police Station Hamirpur, which was entered as G.D. No. 23, dated 04.04.2021, but no action was taken by the police except directing the petitioner-plaintiff to approach the Civil Court for redressal of his grievances.

4. With aforesaid facts, on 06.04.2021, application under order 26 Rule 9 CPC was filed with prayer to appoint Local Commissioner with direction to visit the spot and to report about nature and extent of construction being raised by the respondents-defendants over the suit land.

5. In response to the application, respondents-defendants had contended that they had their residential house over the suit land which was inhabited by them and land was four walled much prior to filing of the suit and there was no passage of the petitioner-plaintiff over the suit land. However, status quo qua nature and possession passed by the Court was maintained by them and the application was meritless.

6. Learned counsel for the petitioner-plaintiff referring Haryana Waqf Board vs. Shanti Sarup and Others, (2008) 8 SCC 671, has submitted that in present case also parties had adjacent lands and, therefore, appointment of Local Commissioner was necessary for elucidating the matter in dispute. Further that application has not been filed for collecting evidence, but for elucidating the matter in dispute regarding which evidence has already been placed on record as a Map issued by Municipal Council, Report of Municipal Council and report of police, wherein path has been shown in the Map and Municipal Council has issued notice to the respondents-defendants not to obstruct the path and the police has advised the petitioner-plaintiff to approach the Civil Court and, therefore, to make the things more clearer by explaining it through Local Commissioner, Trial Court should have allowed the application.

7. Learned counsel for the respondents-defendants has opposed plea of the petitioner-plaintiff on the ground that application is not for demarcation or resolving boundary dispute, but is for collecting evidence with respect to nature and extent of construction being raised by the respondents-defendants over the suit land. Whereas, claim of the responde