The appointment or rejection of a Local Commissioner in a suit for possession does not decide any substantive right of a party, and the party can lead evidence or adopt other mechanisms to prove their grievance.

RAJ MOHAN SINGH, J.

1. Petitioner has preferred this revision petition against the order dated 18.05.2018 passed by Civil Judge (Junior Division), Jalandhar vide which the application under Order 26 Rule 9 CPC for appointment of Local Commissioner filed by the petitioner was dismissed.

2. Plaintiff filed a suit for possession of land measuring 1 kanal 6 marlas illegally encroached upon by the defendant comprised in khasra/khatoni as shown in the head-note of the plaint. Consequential relief of permanent injunction was also sought seeking to restrain the defendant from further encroaching the land of the plaintiff and also from changing the nature of the suit property by way of construction in any manner.

3. In view of nature of the suit, the plaintiff is supposed to lead evidence in order to prove the alleged encroachment made by the defendant over his land. He has also filed a site plan along with the suit showing the extent of alleged encroachment done by the defendant. Plaintiff is required to lead his substantive evidence during trial and the process of the Court by way of demarcation by the Local Commissioner cannot be utilized.

4. Learned counsel for the petitioner relied upon Deepak Narula Vs. Shri Satruhan Dwivedi and others, 2013 33 RCR(Civil) 255 and CR No.5905 of 2013 titled 'Harjit Singh Vs. Pargat Singh' decided on 09.02.2016 in support of his contention.

5. The aforesaid judgments have been considered by this Court in CR No.6108 of 2018 titled 'Ashwani Kumar Vs. Amarjit Kaur and others' decided on 12.09.2018 and it was held that perusal of Deepak Narula's case (supra) would show that the same revolved around its own facts, where there was difference in khasra number mentioned in the sale deed as well as in the plaint. The property was required to be identified by boundaries. Even the Court has observed that an occasion arises in the particular case, where the Court ought to have appointed the Local Commissioner to identify the property with reference to two khasra numbers. The identification by such mechanism would have decided the substantial rights of the parties in the said case.

6. In Harjit Singh's case (supra), the controversy was in respect of the evidence which was led by the parties and there was an ambiguity in the demarcation report already on record. Objections were raised against the demarcation report on the ground that the same was carried out at the back of the party, therefore, in order to do complete justice, the indulgence was granted. Existence of earlier demarcation report and filing of objections and decision in pursuance thereto would decide a substantial right of a party.

7. The basic principle for interference in the matters regarding appointment of Local Commissioner is that the Court can grant indulgence, if the order accepting or refusing to appoint the Local Commissioner has decided a substantial right of a party. When no substantial right of a party is decided by an order, revision against such order is not maintainable.

8. In Harvinder Kaur and another vs. Godha Ram and another, (1979) PunLJ 562 DB, this Court has held that revision against the order refusing to appoint the Local Commissioner is not maintainable. It was concluded that no revision would lie against the order passed under Order 26 Rule 9 CPC. The view expressed by the High Court in M/s Mohinder Kumar Rajinder Parkash Dalmir Singh alias Dalmira and Mangal Singh and another vs. Piara Lal, 1971 PunLR 531 was upheld. Similar view was taken in Pritam Singh and anr. vs. Sunder Lal and Ors., (1990) PunLJ 418.

9. The order refusing to appoint Local Commissioner has not decided any issue on merits in the present case. No right of the petitioner has been adjudicated by the impugned order. Petitioner would be will within his right to lead substantive evidence during trial, therefore, such order is held to be not revisable. Refusal to appoint Local Commissioner has nothing to do with the rights of the petitioner. Petitioner can