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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Satyen Vaidya, J
Shiv Nand – Appellant
Versus
Leela Devi – Respondent
JUDGMENT :
Satyen Vaidya, J.
By way of instant petition, petitioner has taken exception to order dated 20.8.2022, passed by the learned Civil Judge (2), Amb, District Una, in Case No. 231/2010, whereby the application of petitioner under Order 26 Rule 9 Code of Civil Procedure (for short the ‘Code’) for appointment of Local Commissioner has been dismissed.
2. Petitioner has filed a suit against respondents for relief of possession with the allegation that the respondents have encroached upon the land belonging to the petitioner. The land on which the encroachment is alleged is shown, comprised in Khata No. 118, Khatauni No. 203, Khasra No. 827 in Village Gokul Nagar, Tehsil Amb, District Una, H.P. For identifying the alleged encroached portion of the land, the petitioner has placed reliance on a site plan, in which the said encroached portion is shown by letters ABCD. As per allegation of the petitioner, the encroachment was carried by the respondents in the third week of May, 2010. The plaint was instituted in July, 2010.
3. Respondents have filed the written statement and have specifically denied the allegation of any encroachment having been made by them on any portion of land compr
A petitioner must prove encroachment without court assistance and cannot seek a Local Commissioner for evidence collection without prior boundary demarcation.
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.
The main legal point established is that the appointment of a Local Commissioner under Order XXVI Rule 9 CPC can be allowed in a civil suit to assist in elucidating the matter in dispute without caus....
The plaintiff must provide independent and reliable evidence to prove the encroachment and cannot invoke the provisions of Order 26, Rule 9 of the Code of Civil Procedure to generate evidence.
The court clarified that allowing additional evidence for demarcation in boundary disputes is essential and does not constitute filling up a lacuna, reinforcing the importance of accurate boundary de....
The burden of proof to establish encroachment lies with the plaintiff, who must prove the encroachment through independent evidence.
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.
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