Appellate court cannot entertain application under Order 26 Rule 9 for fresh demarcation to test trial court's rejection of existing defective report; sustainability of trial court's reasoning to be decided on appeal merits.

JUDGMENT :
Ajay Mohan Goel, Judge

By way of this petition filed under Article 227 of the Constitution of India, the petitioner has assailed order dated 24.03.2025, passed by the learned Appellate Court, in terms whereof, application filed under Order 26, Rule 9 of the Code of Civil Procedure, by the petitioners herein/plaintiffs, stands dismissed.

2. Brief facts necessary for the adjudication of this petition are that the petitioners before this Court filed a suit for permanent injunction for restraining the defendant from causing any interference upon the suit land. The suit was dismissed by learned Trial Court vide judgment dated 30.05.2024. While dismissing the suit, in para-15 thereof, the following findings were returned by the learned Trial Court:-

“It was mentioned in the demarcation report dated 01.07.2019 (Ex.PW1/C) that defendant had encroached upon 3 biswas of land belonging to plaintiffs by constructing a house. This demarcation report was further affirmed by Asst. Collector 2nd Grade on 04.07.2019, as evident from Ex.PW1/A. Nonetheless, it has come in the cross examination of PW-1 that an appeal against this order is pending in the court of Ld. Sub-Divisional Collector. No tatima or field book has been annexed with the demarcation report nor any points have been depicted in the copy of musabi placed on the case file. In such circumstances, no relief can be granted in favour of the plaintiff on the basis of the demarcation report dated 01.07.2019.”

3. Feeling aggrieved, the petitioners herein have preferred an appeal.

4. During the pendency of this appeal, an application under Order 26, Rule 9 of the Code of Civil Procedure was filed by the petitioners, praying for appointment of a Local Commissioner for demarcation of the suit land. It was mentioned in the application that in terms of the judgment passed by the learned Trial Court, it did not rely upon the demarcation report Ext.PW1/C on the ground that the same did not consist of the map showing the encroachment of 3 biswas by the defendant and some necessary documents were also not appended therewith by the revenue field staff. Primarily on this count, the application was filed by stating therein that the appellants had done whatever they could do to prove the encroachment and the appellants could not be made to suffer for the act of negligence of field revenue staff.

5. The application was opposed by the non-applicant/ defendant.

6. In terms of the impugned order, learned Appellate Court dismissed the application inter alia by holding that record demonstrated that applicants had filed the civil suit for permanent prohibitory injunction for restraining the defendant from interfering over the suit land. Learned Court held that in terms of the record, the suit land was owned by the predecessor-in-interest of the plaintiffs and after his death, mutation No. 2502 was attested. Learned Appellate Court also held that old khasra number of the suit land was 2115 and vide mutation No. 2502, Khasra No. 2115/2052/1817/2, measuring 26-17 bighas was inherited by Sh. Shamhsher Singh, Sh. Vikram Singh, Sh. Surender Singh, Sh. Balinder Singh and Smt. Radha and another khasra No. 2115/2052/1817/1, measuring 0-2 biswas, which was stated to be in the possession of Smt. Shyama Devi and there was no information before the Court as to who this Shyama Devi was. Learned Appellate Court also held that it were the plaintiffs otherwise who have to prove their case and it is not for the Court to create evidence in favour of a party and that too at the appellate stage. On