IMPORTANT POINT
Local Commissioner – Against dismissal of application for appointment of local commissioner, Revision before High Court would be maintainable in exceptional cases.

ANIL KSHETARPAL, J.

1. Plaintiffs-petitioners have filed this revision petition under Article 227 of the Constitution of India, challenging order passed by Civil Judge (Sr. Division), Chandigarh, dismissing application under Order 26 Rule 9 CPC for appointment of Local Commissioner to dig the property by 3-4 feet and ascertain whether “Kunds”(pots) are available on the spot or not.

2. Plaintiffs had filed a suit for permanent injunction restraining the defendants from alienating, taking illegal possession or changing nature of the property, situated in village Sarangpur, Chandigarh. The suit was filed in a representative capacity.

3. In the written statement, the claim made was contested. Defendants claimed that the suit property is in residential area, which has been transferred vide transfer deed dated 21.09.2012. It was further claimed that property was a constructed property, which was subsequently demolished in the year 2013.

4. As noticed, during the pendency of the suit, plaintiffs filed an application for appointment of local commissioner.

5. Learned Court has dismissed the application by assigning following reasons:-

“6. In the present case, the plaintiff filed the suit for permanent injunction against the defendant from alienating, taking illegal possession of changing the nature of the property measuring 2 – 2-1/2 Marlas, which is being used for common purposes by the Ravidasia community, village Sarangpur or common purpose since time immemorial and further restraining the defendant from interfering in the peaceful possession and use of the property by Ravidasia community of village Sarangpur. Whereas the defendant has denied this fact that plaintiffs have any possessory right, title in the suit property. Further averred that the suit property was originally possessed by the defendant predecessor and subsequently, it is under the possession of the defendant. The land has been purchased by the, vide sale deed dated 21.09.2012 from Smt. Tej Kaur. Further averred that there is no Kunds exists in the suit property.

7. Meaning thereby the burden is upon the plaintiff to prove that suit property is used for common purpose by the Remdasia Community of village Sarangpur, UT. Also to prove that there exists Kunds over the suit property. It is a matter of evidence to prove this fact that suit land is used by Ramdasis Community for common purposes which the plaintiff is required to prove by leading cogent evidence. Hence, this court comes to the conclusion that present application has been filed by the plaintiff in order to collect evidence on file. As per Order 26 Rule 9 of the CPC, it empowers the Court to appoint Commissioner to make local investigations depending upon the facts and circumstances. But it is pertinent to point out here that it is not the aim of Order 26 Rule 9 of the CPC to access the litigant to collect evidence where the litigant can get evidence himself. Local Commissioner cannot be appoint to ascertain factum of possession or collection of evidence. To support my view, this Court placed reliance upon case titled as Jagmohan Vs. Ram Kumar, P&H 2014(1) PLR 472”. As such there is no requirement of appointment of Local Commissioner and applicant cannot allowed to collect evidence through the assistance of Court. Accordingly, the application in hand is hereby dismissed. Now to come up on 24.05.2017 for evidence of the plaintiff.”

8. Learned counsel for the petitioners has submitted that since it is not possible for the plaintiffs to dig out the suit property, therefore, it would be appropriate to appoint a Local Commissioner directing him to dig the property by 3-4 feet and report to this Court what is the nature of the property. Learned counsel has further submitted that the trial court has failed to exercise jurisdiction vested in it.

9. I have considered the submissions made by counsel for the petitioners. However, I am unable to agree with the same.

10. First of all, there are two Division Bench judgments