A plaintiff cannot seek a Local Commissioner to gather evidence if there is no substantial basis for such request, particularly when the burden of proof lies with them regarding ownership claims.

JUDGMENT :

Jyotsna Rewal Dua, J.

1. Plaintiff’s application under Order 26 Rule 9 read with Section 151 of Code of Civil Procedure for appointment of Local Commissioner in order to verify the spot position over the suit land was dismissed by the learned Trial Court on 23.10.2019. Feeling aggrieved, the plaintiff has assailed this order by invoking the jurisdiction under Article 227 of the Constitution of India.

2. The Civil Suit was instituted by the petitioner against the respondents seeking declaration to the effect that he was owner in possession of 2/3rd suit land on account of adverse possession by ouster of predecessor-in-interest of the respondents and to the extent of 1/3rd on account of purchase of suit land from one of its co- owners. The plaint specifically pleaded that the suit had been filed for mere declaration. That the plaintiff was already in the possession of the suit land and the defendants did not possess even an inch of the suit land.

3. The respondents-defendants contested the suit. Parties adduced evidence in support of their respective contentions. Evidence was concluded by the parties on 22.12.2016 and the matter was posted for arguments. At that stage, the plaintiff moved an application under Order 26 Rule 9 read with Section 151 CPC for appointment of Local Commissioner. This application was dismissed by the learned Trial Court on 23.10.2019 holding that there was no boundary dispute between the parties and it was not a case where facts necessitated appointment of Local Commissioner.

It is in the aforesaid background that the plaintiff has assailed the order dated 23.10.2019.

4. Having heard learned counsel for the parties and on considering the case file, I am not inclined to interfere with the impugned order. This is for the following reasons:-

4(a) The suit filed by the petitioner-plaintiff was for declaration that he had become owner of 2/3rd of the suit land by way of adverse possession and 1/3rd by way of purchase. The petitioner-plaintiff was very well aware about the case set up by him in his plaint. It was his own pleaded case that the respondents- defendants did not possess even an inch of the suit land. That he was in possession of the entire suit land. The suit was for declaration simplicitor. There was no averment in the plaint that defendants were trying to encroach the suit land.

4(b) In the application moved by the petitioner-plaintiff under Order 26 Rule 9 read with Section 151 CPC, prayer was made for appointment of Local Commissioner to visit the spot and by conducting demarcation to verify and ascertain the location of house of the defendants and the status/nature of the suit land. The application was nothing but a fishing inquiry being attempted by the petitioner-plaintiff in order to gather evidence. The petitioner-plaintiff cannot be permitted to hunt for evidence under the guise of the application under Order 26 Rule 9 CPC.

4(c) Learned counsel for the petitioner-plaintiff placed reliance upon a decision rendered in Kangru Ram Vs. Sriram , 2024(1) HLR 128 The facts of that case are entirely different from the facts involved in the instant case. In Kangru Ram’s case, there was a boundary dispute inter-se the parties. In the given facts of that case, the Court had exercised its jurisdiction by appointing local commissioner fordemarcating the land. Facts of the instant case are entirely different. No boundary dispute is involved in the instant case. Suit has been filed by the petitioner seeking declaration of his having become owner of the suit land. Reliance placed by learned counsel for the petitioner upon decision in Kangru Ram’s case, is 4(d) As already observed , the suit was filed seeking declaration that the petitioner had become owner of 2