IMPORTANT POINT
The prime duty of the Court is to arrive at the truth of the matter and to adjudicate upon the issues brought before it in light of such truth.

Petitioner has assailed order dated 01.04.2023, passed by learned Senior Civil Judge, Court No. 1, Amb, District Una, H.P. in CMA No. 81-VI-2023 tagged with Civil Suit No. 209/1 of 2012, by way of instant petition.

2. Petitioner herein is the original plaintiff in Civil Suit No. 209/1 of 2012 before learned Trial Court. Respondents herein are the defendants. Respondents No. 1 and 2 herein are the only contesting defendants before learned Trial Court. The parties hereafter shall be referred to by the same status as they hold before the learned Trial Court.

3. Plaintiff filed a suit for permanent prohibitory injunction against defendants in respect of land comprised in Khewat No. 68 min., Khatoni No. 209, Khasra No. 2372 measuring 0-01-58 Hectares, situated in village Amlehar Tehsil, Amb, District Una, H.P. (for short “the suit land”) by claiming himself to be a co-owner in possession thereof. Defendants were initially alleged to be interfering in the rights of plaintiff qua suit land and on that basis decree of permanent prohibitory injunction was sought.

4. During the pendency of the suit, plaintiff amended the plaint by alleging that after filing of the suit and despite the passing of interim injunction order by the Court, defendants had made encroachment upon suit land and therefore, a decree for possession by way of mandatory injunction by demolition and removal of the super structure/construction raised by defendants and by restoring the suit land to its original possession has been sought.

5. Post amendment in the plaint, plaintiff filed an application under Order 26 Rule 9 of the Code of Civil Procedure, for appointment of Local Commissioner to demarcate the land in order to ascertain the extent of encroachment on the suit land. Defendants contested the prayer for appointment of Local Commissioner.

6. Learned Trial Court has dismissed the application under Order 26 Rule 9 of the CPC, of the plaintiff, on the grounds firstly, that the plaintiff had the available remedy to get the demarcation from Revenue Officer by invoking the provisions of Section 107 of H.P. Land Revenue Act and secondly, that the Court was not to be used as an agency for collection of evidence.

7. I have heard learned counsel for the parties and have also gone through the record of the case carefully.

8. Order 26 Rule 9 of the Code, vests the Court with jurisdiction to issue a commission for making a local investigation in case the Court deems such investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or to ascertain the market value of any building, or the amount of any mesne profits or damages or annual net profits. In the case in hand, learned Trial Court was called upon to exercise jurisdiction by ordering local investigation by appointing a Revenue Officer to demarcate the suit land. The plaintiff has alleged the encroachment on the suit land and the defendants have denied such allegation.

9. In order to prove the allegation of encroachment, evidence in the shape of ascertainment of boundaries of suit land and the extent of encroachment, if any, made thereon is required. Such evidence can be in the form of demarcation report prepared by the Revenue Officer in exercise of powers under H.P. Land Revenue Act.

10. The impugned order reveals that even learned Trial Court has not held that the demarcation was not necessary in the given facts of the case. What has been held is that the plaintiff can avail of remedy under Section 107 of H.P. Land Revenue Act, by getting the suit land demarcated from the Revenue Officer and since plaintiff has failed to do so, the Court was not to fill-up the lacunae by appointing Local Commissioner.

11. H.P. High Court Rules and Orders, Vol. (I), contains a provision in respect of cases where boundary dispute is involved as under:-

“1. In "Hadd-Shikni" suits and other suits of boundary disputes of land failing within the jurisdiction of a Civil Court it is generally desirable that enquiry b