The party alleging a boundary dispute must prove its allegations and cannot abuse the provision of Order 26, Rule 9 of the Code of Civil Procedure to create evidence.

Headnote:
Local Commissioner - Boundary Dispute - The court dismissed the application for appointment of a Local Commissioner under Order 26, Rule 9 of the Code of Civil Procedure, holding that the provision cannot be abused to create evidence and that the party alleging a boundary dispute must prove its allegations.
Fact of the Case:

The petitioner filed a suit for injunction and a mandatory injunction regarding a boundary dispute. The petitioner later filed an application under Order 26, Rule 9 of the Code of Civil Procedure seeking appointment of a Local Commissioner for demarcation of the suit land.
Finding of the Court:

The court found that the application to appoint a Local Commissioner was filed after both parties had led their evidence, and it was an attempt to fill up the lacunae in the petitioner's case. The court held that the provision of Order 26, Rule 9 cannot be abused to create evidence and that the party alleging a boundary dispute must prove its allegations.
Issues: The issues involved the dismissal of the application for appointment of a Local Commissioner under Order 26, Rule 9 of the Code of Civil Procedure and the abuse of the provision to create evidence.
Ratio Decidendi: The court emphasized that the party alleging a boundary dispute must prove its allegations and cannot invoke the provision of Order 26, Rule 9 of the Code of Civil Procedure as an afterthought to create evidence.
Final Decision: The petition was dismissed, and pending miscellaneous applications were disposed of.

JUDGMENT :

(Ajay Mohan Goel, J.)

By way of this petition, filed under Article 227 of the Constitution of India, the petitioner has challenged order dated 21.11.2023, passed by the Court of learned Senior Civil Judge, Rampur Bushahr, District Shimla, H.P., in terms whereof, an application filed by the petitioner under Order 26, Rule 9 of the Code of Civil Procedure, seeking appointment of a revenue officer as a Local Commissioner to demarcate the suit land has been dismissed.

2. Having heard learned counsel for the petitioner and having carefully gone through the order passed by the learned Trial Court, this Court does not finds any perversity in the impugned order.

3. The suit filed by the petitioner, as is evident from the copy of the plaint which is on record as Annexure P1, demonstrates that the relief prayed therein is for a decree of permanent prohibitory injunction restraining the defendant from extending the roof of her newly under constructed house over the suit land and the roof of the house of the plaintiff etc. Decree for mandatory injunction ordering the demolition of extended portion of the beams of the third storey of the house of the defendant etc. has also been prayed for.

4. The suit has been instituted in the year 2019 and the application under Order 26, Rule 9 of the Code of Civil Procedure was filed on 27.11.2023 at the stage when both the parties had led their evidence.

5. A perusal of the application filed under Order 26, Rule 9 of the Code of Civil Procedure, copy whereof is appended with the petition as Annexure P4, demonstrates that it was mentioned therein that because the defendant has denied the case of the plaintiff by taking a stand that she has carried out the entire construction over her land, therefore, the dispute is a boundary dispute and there was a necessity for appointment of a Local Commissioner for just adjudication of the case.

6. The application has been rejected by the learned Trial Court by holding that a suit for injunction presupposes that the plaintiff is aware about his boundary and it is therefore that he is seeking relief to restrain the defendant from interfering in his land. Learned Trial Court also held that it was not the case of the plaintiff that he was not aware about his boundary and otherwise also the plaintiff could not be permitted to create evidence through Court assistance, because if there was any doubt in the mind of the plaintiff regarding correctness of his version then he ought to have sought demarcation before filing the suit. Learned Trial Court also relied upon the judgment of this Court in Ratti Ram vs. Shobha Ram, 2021 (3) Him. L.R. (HC) 1576, while dismissing the application in which this Court has, inter alia, held that a party cannot be permitted to collect evidence by calling upon a Court to appoint a Local Commissioner.

7. As already observed hereinabove, this Court does not finds any perversity in the findings returned by the learned Trial Court while dismissing the application of the plaintiff. Because it is the allegation of the plaintiff that the defendant has carried out construction in a manner that there are certain projections etc. over the land owned by the plaintiff, therefore, the onus to prove all these allegations is upon the plaintiff. The very fact that this application was filed by the plaintiff after both the parties had led their evidence is demonstrative of the fact that the endeavour of the plaintiff by way of filing of the application under Order 26, Rule 9 of the Code of Civil Procedure was nothing but to fill up the lacunae in his case which is not the spirit of the provisions of Order 26, Rule 9 of the Civil Procedure Code.

8. In fact, Order 26, Rule 9 of the Code of Civil Procedure cannot be allowed to be abused by a party to create evidence in his/her favour and this provision can be invoked only if the ingredients of Rule 9 of Order 26 of the Code of Civil Procedure are satisfied, i.e. inter alia, the Court deems a local investi

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