The onus of proof lies on the respective parties by adducing evidence at the appropriate stage, and the court should not assist in collecting favorable evidence.

Judgment

Mrs. Sukhvinder Kaur, J.

By way of present revision petition, the petitioner has challenged order dated 15.11.2023 (Annexure P-5) passed by learned trial Court, vide which application filed by the petitioner/plaintiff for appointment of Local Commissioner, has been rejected.

2. The brief facts relevant for the adjudication of the present revision petition are that the petitioner/plaintiff had filed a suit for declaration with consequential relief of permanent injunction against the respondents/defendants claiming declaration to the effect that the passage/rasta 22 feet in the suit property is common for use of all the residents and the defendants have no right to interfere or block the said passage/rasta by any means and also for permanent injunction to the effect that the defendants/respondents are restrained from interfering in the passage/rasta used by the plaintiff/petitioner by blocking the same or from reducing the width of the said passage/rasta. After issuing of notice to the respondents/defendants by the trial Court, they appeared and filed the written statement with the averments that they are in exclusive possession of immovable property in dispute and denied that the plaintiff is having 1/4th share in the suit property. Vide order dated 13.09.2021 passed by the trial Court, an interim injunction was granted vide which a direction was given to both the parties not to interfere ingress and outgress of each other qua common passage/rasta as used by them since long. Thereafter, an application under Order 39 Rule 2A CPC was filed by the petitioner/plaintiff before the trial Court alleging that the respondents/defendants had deliberately violated the injunction order passed by the trial Court by demolishing the existing guard room etc. and also installed the new gate and shifted the rasta of the plaintiff/petitioner to another location within property of HUDA Department. The defendants also installed new pucca iron gate in Rect No.23, Kila No.19/1 which is in the property of HUDA Department.

3. The petitioner/plaintiff moved an application before the trial Court for appointment of a Local Commissioner i.e. Kanoongo or Naib Tehsildar of the revenue department to ascertain the existing state of affairs of the suit property and to ascertain the facts whether the defendants have shifted the rasta/passage alongwith gate and blocked the common rasta and had installed a new gate in the HUDA property and also to demarcate the land in question i.e. Rect No.23, Kila No.19/1 as detailed in para No.1 of the plaint, so as to ascertain the existing state of affairs. In the reply filed by them the respondents/defendants denied the allegations and alleged that there is no necessity of appointment of Local Commissioner for the said purpose. The learned Trial Court, vide order dated 15.11.2023 dismissed the said application. Hence the petitioner knocked the doors of this Court by way of filing the present revision petition.

4. Learned counsel for the petitioner has contended that the trial Court while passing the impugned order has not considered the facts that the respondents/ defendants despite having specific knowledge regarding passing of the injunction order dated 13.09.2021, intentionally committed violation of the said order and demolished the passage/rasta used by the plaintiff/petitioner and also caused hindrance by installing the iron gate. As the other party was denying the said allegations so in order to ascertain the true facts the Local Commissioner was required to be appointed. The trial Court has also erred in observing that by way of the said application, the petitioner/plaintiff wanted to appoint the Local Commissioner to create evidence. He has also submitted that the appointment of the Local Commissioner would not hamper or would not cause any loss to the respondents/defendants in any manner. The trial Court has also not properly considered the photographs of the disputed passage which clearly show that the respond