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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
PANKAJ JAIN
Dalbir Singh – Appellant
Versus
Surjan Singh – Respondent
| Table of Content |
|---|
| 1. petitioner challenges order of the executing court. (Para 1 , 2) |
| 2. application for local commissioner dismissed. (Para 3 , 5) |
JUDGMENT :
Challenge is to the order dated 14.01.2025 passed by Additional Civil Judge, Sr. Division, Patti.
3. The present petitioner/JD moved an application under Order XXVI Rule 9 CPC seeking appointment of Local Commissioner to ascertain the extent of encroachment on the street in dispute which forms part of Khasra No.316.
“The present execution was pending at the stage of evidence on behalf of JDs when the JD no.1 filed 2nd objections and then filed the application under order 26 rule 9 CPC. The JD no.1 has sought appointment of local commissioner to ascertain whether there is encroachment at present in the street in dispute bearing Khasra no.316 or not. However, it is settled principle of law that Local Commissioner cannot be appointed to collect evidence, and otherwise also, once the present case is pending for evidence on behalf of JDs, then the JD no.1 would be at liberty to prove if any such encroachment mentioned in Decree dated 10.02.2001 has already been removed and in this manner, no prejudice would be caused to the JD no.1 if th
Local Commissioner cannot be appointed to collect evidence; compliance with prior decree must be demonstrated by the Judgment Debtor.
The appointment of a Local Commissioner is justified to ascertain facts regarding encroachments and assist in adjudicating property disputes.
The plaintiff must provide independent and reliable evidence to prove the encroachment and cannot invoke the provisions of Order 26, Rule 9 of the Code of Civil Procedure to generate evidence.
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.
An order refusing to appoint a local commissioner does not decide any issues or rights in a suit and is therefore non-revisable.
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 discretion to appoint a local commissioner rests with the court, and the party must lead evidence to prove ownership and possession over the property.
The main legal point established is that the appointment of a Local Commissioner under Order XXVI Rule 9 CPC can be allowed in a civil suit to assist in elucidating the matter in dispute without caus....
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