IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 409 of 2019 Reserved on : 05.10.2023 Decided on: 08.12.2023 Sh. Sanjeev Kumar alias Sanjeev Raizada .…Petitioner Versus Sh. Yudhvir Singh …Respondent Coram The Hon’ble Mr. Justice Ajay Moha n Goel, Judge.

Whether approved for reporting?1 Yes For the petitioner : rMr. Ashok Sud, Senior Advocate with Mr. Khem Raj, Advocate.

For the respondents : Mr. Sanjeev Kumar Suri, Advocate.

Ajay Mohan Goel, Judge By way of this petition filed under Article 227 of the Constitution of India, the petitioner has challenged the order passed by the Court of learned Senior Civil Judge, Court No. 1, Una, District Una, in case No. 184/2017, titled as Sanjeev Kumara alias Sanjeev Raizada vs. Yudhvir Singh, in terms whereof, an application filed by the petitioner under Order 26, Rule 9 of the Code of Civil Procedure before the learned Trial Court for appointment of the Local Commissioner has been dismissed.

2. Brief facts necessary for the adjudication of the present petition are that the petitioner/plaintiff (hereinafter to be referred as ‘the plaintiff’) has filed a suit against the respondent herein (defendant in the suit) for permanent injunction to the effect that respondent does not

1 Whether reporters of the local papers may be allowed to see the judgment?

interfere or encroach upon or carry out any construction on the suit land by dispossessing the plaintiff forcibly. This suit was filed in the month of May, 2017.

3. During the pendency of the suit, an application was filed by the plaintiff under Order 26, Rule 9 of the Code of Civil Procedure, in January, 2019, praying for the appointment of a Local Commissioner, being a revenue expert, to visit the spot to demarcate the suit land and report whether the defendant has encroached upon the area referred to in the application or nuot.

4. This application has been dismissed by the learned Trial Court vide order dated 17.04.2019, by holding that the plaintiff had filed the suit for permanent prohibitory injunction and mandatory inhjunction, claiming the relief of possession upon the portion which was the part of Khasra No. 6720, on account of encroachment made by the defendant, which encroachment allegedly was made during the pendency of the suit. Learned Court held that the plaintiff had filed an application for amendment of the suit in which there was a specific averment made that portion ABCDEFHIA, which was part of Khasra No. 6720, was encroached upon by the defendant during the pendency of the suit. In this background, the plaintiff was now taking a destructive plea by moving the application for appointment of the Local Commissioner on the plea that it was necessary to find as to whether the land in issue was part of Khasra No. 6720 or not because this implied that the plaintiff was not aware of his own boundaries and rather he was dragging the Court for collecting evidence on his behalf to prove that certain portion of suit land stood encroached upon by the defendant. Learned Court also observed that as the plaintiff had placed reliance upon the site plan, therefore, the onus was upon him to prove the same and the provisions of Order 26, Rule 9 of the Code of Civil Procedure could not be invoked so as to involve the Court in the process.

5. Having guone through the order passed by the learned Court below and having heard learned Senior Counsel for the petitioner/plaintiff as also learned Counsel for the respondent/defendant, this Court does not find any perversity in the imhpugned order. When it is a matter of record that the petitioner had sought amendment in the suit on the ground that during the pendency of the suit, certain part of the suit land stood encroached by the defendant, this pre-supposes that the petitioner was aware of his boundaries and only thereafter, he levelled allegations against the respondent of encroaching upon his land. In this background, but natural, the petitioner cannot be permitted to call upon the Court by way of a