The appointment of a Local Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure cannot be invoked to generate evidence or assist a party in proving its case, as the burden of proof rests solely on the litigant to establish their claims through independent evidence.

Romesh Verma, Judge

The present petition arises out of the order as passed by the learned Civil Judge, Court No.1 Dharamshala, District Kangra, H.P., whereby the application filed by the plaintiff/petitioner under Order XXVI Rule 9 read with Section 151 C.P.C for appointment of the Local Commissioner has been ordered to be dismissed.

2. The facts of the case are that the present petitioner/plaintiff has filed a suit in the Court of learned Civil Judge, Court No.1, Dharmshala, District Kangra, H.P. for permanent prohibitory injunction restraining the defendants, their family members, friends and servants etc. from interfering, collecting material, raising any construction and changing the nature of the land comprised in Khata No. 353 min, Khatauni No. 767 min. , Khasra No. 722 area measuring 0-00-84 hectares of Up Mohal Lehsar, Mauza Yol, Tehsil, Dharamshala, District Kangra, H.P. in any manner with further prayer that mandatory injunction be passed in favour of the plaintiff, in case the defendants succeeded in raising the construction over the suit land during the pendency of the said suit.

3. It has been averred in the plaint that the plaintiff is co-owner in possession of the land bearing Khasra No. 723. It has further been averred that the respondents/ defendants are owners in possession of the land bearing Khasra No. 2028/687 and 2029/687 in Up Mohal Lehsar, Mauza Yol, Tehsil Dharamshala, District Kangra. In between the land of the plaintiff and the defendants, there exists a Kuhl over the land entered in Khata No. 353 min, Khatouni No. 767 min, Khasra No. 722, measuring 00-00-84 of Up Mohal Lehsar, Mauza Yol, Tehsil Dharamshala, District Kangra, H.P . The plaintiff and other residents of the area are using the Kuhl and there also exist a passage on the sides of the Kuhl. The defendants have got no right, title or interest over the suit land bearing Khasra No. 722. The defendants are threatening to trespass over the suit land and they are trying to invade the rights of plaintiff and other residents of the locality. Therefore, it was prayed that decree for permanent prohibitory injunction be passed against the defendants, their family members, friends, servants etc. from interfering, collecting material raising any construction changing the nature of the suit land bearing Khasra No. 722 with further prayer for mandatory injunction against the defendants.

4. The defendants/respondents filed the written statement and raised preliminary objections with regard to maintainability, locus standi, cause of action, limitation, non joinder of necessary parties, etc. It was averred in the written statement that the land of the plaintiff is situated on one side of the Kuhl i.e in Khasra No. 722 and the land of the defendants is on the other side. Further it has been stated that land bearing Khasra No. 722 is not owned and possessed by the plaintiff. The averments with respect to encroachment over Khasra No.722 were denied and it was stated that defendants sought a demarcation of the land bearing Khasra No. 2028/687 and 2029/687 from the revenue authorities and as per the demarcation of the land, the construction was found to have raised on the land owned and possessed by the defendants. Therefore, the defendants prayed for dismissal of the suit filed by the plaintiff.

5. The plaintiff filed a replication to the written statement and all the averments as made in the plaint were reiterated.

6. The case file reveals that on 20.05.2014, an application under Order XXVI Rule 9 read with Section 151 C.P.C for the appointment of the Local Commissioner was filed by the present petitioner/