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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Karamjit Singh, J.
Ramesh Chander - Petitioner
Versus
Kishori Lal and others - Respondents
CR No. 9040 of 2017
Decided On : 22-12-2023
local commissioner - Land Dispute - Order 26 Rule 9 CPC - [Order 26 Rule 9 CPC] - The court discussed the appointment of a local commissioner under Order 26 Rule 9 CPC for demarcation of the suit land and the surrounding areas to determine the location of the houses of the respondents. The petitioner sought appointment of a revenue expert as a local commissioner to establish the encroachment of the suit property by the respondents. The court held that the petitioner must adduce independent and reliable evidence and cannot rely on the court to collect evidence for him. The court also emphasized that the appointment of a local commissioner for the purpose of collecting evidence is not permissible under the law.
Fact of the Case:
The petitioner filed a suit seeking vacant possession of land and restraining the respondents from raising further construction. The respondents contested the suit, denying the petitioner's possession of the land and raising preliminary objections. The petitioner filed an application for appointment of a local commissioner, which was dismissed by the trial court. The petitioner then filed a revision petition against the dismissal of the application.
Finding of the Court:
The court held that the petitioner cannot rely on the court to collect evidence for him and must adduce independent and reliable evidence. It also stated that the appointment of a local commissioner for the purpose of collecting evidence is not permissible under the law. The court dismissed the revision petition, but allowed the trial court to appoint a local commissioner if necessary after the recording of the entire evidence.
Issues: The main issue was the petitioner's request for the appointment of a local commissioner under Order 26 Rule 9 CPC for demarcation of the suit land and the surrounding areas to establish the encroachment of the suit property by the respondents.
Ratio Decidendi: The court emphasized that the petitioner must adduce independent and reliable evidence and cannot rely on the court to collect evidence for him. It also clarified that the appointment of a local commissioner for the purpose of collecting evidence is not permissible under the law.
Final Decision: The court dismissed the revision petition but allowed the trial court to appoint a local commissioner if necessary after the recording of the entire evidence.
JUDGMENT :
KARAMJIT SINGH, J.
1. The petitioner/plaintiff being aggrieved by order dated 01.11.2017 (Annexure P-8) passed by the Court of Additional Civil Judge (Senior Division), Pathankot whereby the application moved under Order 26 Rule 9 CPC by petitioner has been dismissed in civil suit No.CS/2407/2014 titled Ramesh Chander Vs. Kishori Lal and others.
2. The brief facts of the case are that petitioner filed suit for vacant possession of land bearing Khewat No.453, Khatoni No.625, Khasra Nos.1813 (0-12), 1814 (0-03), 1815 (0-08) total measuring 1 kanal 3 marlas and described as ABEFCD in red and blue colours in the site plan attached with the plaint, after removal of malba (structure) on the basis of demarcation which was conducted prior to filing of the suit and further restraining the respondents/defendants from raising any further construction over the suit property.
3. The suit is being contested by the respondents who filed written statement taking preliminary objection that the respondents are not having their houses in Khasra Nos.1813, 1814 & 1815 and house of respondent No.1-Kishori Lal is located in Khasra No.1832 & 1820 and houses of respondents Naresh Kumar, Bal Kishan and Major Sab are situated in Khasra No.1832. On merits it was pleaded that no doubt the respondents are co-owners in Khasra No.1818, they are also co-owners in Khasra No.1820 wherein their houses are existing. It is denied that petitioner is in possession of Khasra No.1818 or that the suit property is in possession of the respondents.
4. Petitioner filed one application for appointment of local commissioner, before the settlement of issues and the same was dismissed by the trial Court vide order dated 03.08.2016. Being aggrieved, petitioner filed Civil Revision No.6728 of 2016, which was dismissed as withdrawn with liberty to the petitioner to file a fresh application seeking appointment of local commissioner after adducing evidence, vide order dated 06.10.2016 Annexure P-5. After recording of certain evidence, the petitioner in the light of aforesaid order Annexure P-5 filed an application Annexure P-7 with prayer that earlier application filed by the petitioner under Order 26 Rule 9 CPC for appointment of a revenue expert as a local commissioner to demarcate the land in question bearing Khasra Nos.1813, 1814, 1815, 1818, 1820 and 1832 as well as its surrounding Khasra numbers to determine the location of the houses of the respondents, may be disposed of. The said application was contested by the respondents. The learned trial Court dismissed the said application vide impugned order dated 01.11.2017 Annexure P-8.
5. The petitioner being aggrieved by order Annexure P-8 has filed the present revision petition.
6. I have heard the counsel for the parties.
7. The counsel for the petitioner has submitted that the respondents are having no right, title or interest in the suit property bearing Khasra Nos.1813 (0-12), 1814 (0-03), 1815 (0-08) total measuring 1 kanal 3 marlas and the respondents took forcible possession of the said property and now petitioner has filed suit seeking possession of the suit property from respondents. It has been further submitted that appointment of a revenue official as a local commissioner is necessary to get report regarding location of the houses of the respondents, who are blowing hot and cold in the same breath in their written statement. That in preliminary objection No.1 of their written statement the respondents pleaded that their houses are not situated in Khasra Nos.1813, 1814 and 1815 and rather their houses are situated in Khasra Nos.1820 and 1832. That in the same written statement, while denying the allegations made in the plaint, respondents in para no.7 on merits, pleaded that forefathers of the petitioner gave land in question to the predecessors in interest of the respondents and they raised construction of permanent nature in the said land and as such the alleged licence in favour of the respondents qua the suit
The petitioner must adduce independent and reliable evidence and cannot rely on the court to collect evidence for him. The appointment of a local commissioner for the purpose of collecting evidence i....
The court established that the refusal to appoint a Local Commissioner does not affect the rights of the parties and is not subject to revision.
The conduct of parties seeking additional evidence is crucial; repeated applications dismissed indicate intent to delay proceedings, warranting rejection of new requests.
An order dismissing an application for appointing a Local Commissioner does not adjudicate rights and is hence not revisable, as established by prior authority.
The discretion to appoint a local commissioner rests with the court, and the party must lead evidence to prove ownership and possession over the property.
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