In a suit for declaration and injunction, the duty of proving the case lies with the plaintiffs, and the defendants are not entitled to seek the appointment of a Commissioner for noting down physical features or furnishing the topography of the land.

1. This Civil Revision Petition is filed against the order made in I.A.No.271 of 2009 in O.S.No.30 of 2008 dated 22.09.2010, whereby, the application filed by the petitioners herein for appointment of Commissioner was rejected. The respondents 1 to 3 herein are the plaintiffs in a suit for declaration, mandatory injunction and for permanent injunction. The petitioners herein, who are the defendants 1, 3, 7, 12 to 15, 18 & 19 in the said suit, filed an application for appointment of an Advocate Commissioner for the purpose of inspecting the suit property and for noting down the physical features therein and to file the topography of the property with the help of Land Surveyor.

2. According to the petitioners, in the absence of any report filed by the Commissioner, it would be difficult for the Court to know about the correct topography of the land and the actual details of the physical features available in the property also will not be made available before the Court for its proper adjudication of the matter. Even according to the petitioners, it is for the plaintiffs to seek for an appointment of Commissioner for the above said purpose and as they have not sought for such relief, the present petition came to be filed by them. The said application was resisted by the plaintiffs by contending that they have given the description of the property in the plaint schedule with specific boundaries and when the suit is not for description of topography, seeking for appointment of an Advocate Commissioner to note down the physical features of the suit property is not warranted.

3. It is further stated that the suit was filed on 20.03.2008 and the petitioners herein have filed their written statement on 22.09.2008. The suit was ripe for trial from 30.11.2008 onwards. The first respondent was examined in chief on 14.07.2008 and documents, Exs.A1 to A13 were marked. Thereafter, the matter was posted for cross examination. Instead of cross examining the witnesses, the petitioners have filed the present application unnecessarily to drag on the proceedings. The Court below, after considering the rival submissions and the pleadings made by the parties, rejected the application filed by the petitioners by holding that only the plaintiffs are bound to prove their case and if the defendants/petitioners are in possession of the property, they can prove the same by adducing evidence on their behalf. In a suit for declaration and injunction, it is the duty of the plaintiffs to prove the case before the Court by letting in proper evidence. Therefore, the Court below found that the appointment of Commissioner, at the instance of the petitioners, who are the defendants in the said suit, is not at all warranted. Moreover, the Court below has also found that the application was filed belatedly, after the trial has commenced.

4. Heard the learned counsel for the respective parties.

5. The suit is one for declaration, mandatory injunction and for permanent injunction. It is well settled that the plaintiff has to succeed based on his pleadings and evidence let in by him in support of such pleadings. If there is any failure or lapse on the part of the plaintiffs, either in making the correct description of the property or for convincing the Court with material evidence in support of their claim, they would have to suffer for such failure. Therefore, it is for them to establish the case before the Court by adducing proper evidence. The petitioners herein as the defendants have sought for appointment of Commissioner only for noting down the physical features and also to furnish the topography of the land before the Court, which, in my considered view is not necessary.

6. In a suit for declaration and injunction of this nature, the defendants need not seek for the appointment of Commissioner to disprove the case of the plaintiffs. The trial Court had considered all these facts and circumstances and also found that the plaintiffs are bound to pro