O R D E R

By way of this petition filed under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs:-

“It is, therefore, most humbly and respectfully, prayed that this petition may kindly be allowed and the impugned order dated 03.12.2021, Annexure P-6, passed by Learned Civil Judge, (Court No. 5), Shimla, District Shimla, H.P. in C.M.A. No. 1519 of 2021, in Civil Suit No. 170/1 of 2014, titled as Pyar Singh Vs. Shri Achru Ram, whereby the application under Order 26, Rule 9 read with Section 151 of the Civil Procedure Code for the appointment of the Local Commissioner filed by the petitioner/plaintiff, stand dismissed, may very kindly be quashed and set aside and the abovestated application, as filed by the petitioner/plaintiff, may very kindly be allowed in the interest of laws and justice.”

2. Brief facts necessary for the adjudication of the present petitioner are as under:-

The petitioner/plaintiff (hereinafter to be referred as ‘the plaintiff’ for the sake of convenience) filed a suit for permanent prohibitory injunction for restraining the defendant and his family members from carrying out any construction activity and interfering with the ownership, possession and peaceful and beneficial enjoyment of the plaintiff over the suit property. A decree for mandatory injunction directing the defendant to remove illegal construction of retaining wall carried out by him upon the land of the plaintiff as also declaration to the effect that the defendant has no right, title or interest over the suit land also stands prayed. The suit was filed in the month of July, 2014. A copy of the plaint is appended with the present petition as Annexure P-1. The suit is contested by the defendant inter alia on the ground that the defendant has not encroached upon the land of the plaintiff as alleged and in the course of settlement proceedings, the land of the defendant was decreased to the extent of 11 Biswas out of Khasra No. 146/120, area measuring 1-14 biswas from which 11 biswas was wrongly reduced and that defendant had already filed an application before settlement authority for correction of the same, which was sub-judice.

3. As already mentioned hereinabove, the suit was instituted in the year 2014. At the stage when the case was taken up by the learned Trial Court for the purpose of hearing of the suit, , an application under Order XXVI, Rule 9 of the Code of Civil Procedure was filed by the plaintiff on 20.11.2021 praying therein that as the dispute raised by way of the suit was a boundary dispute, therefore, to ascertain as to whether any retaining wall indeed stood constructed by the defendant upon khasra Nos. 116 or 117, a local commissioner be appointed and a competent revenue officer be directed to carry out demarcation at the spot in the presence of the parties. A copy of the application filed under Order XXVI, Rule 9 of the Code of Civil Procedure is appended with the petition as Annexure P-4. The application was resisted by the non-applicant/defendant in terms of reply, copy of which is appended with the petition as Annexure P-5, on the ground that the application was misconceived as it was not for the Court to collect evidence for the plaintiff as it was for the plaintiff to prove his case. It was further the stand of the non-applicant that as alleged by the plaintiff, defendant had not purchased land comprised in Khasra No. 117, and in fact, Khasra No. 117 was carved out of Khasra No. 24 and Khasra Nos. 116 and 117 were part of old Khasra No. 24 and thus it was denied by the non- applicant that Khasra No. 117 was carved out of Khasra No. 22, as was the stand of the plaintiff and averments to this effect contained in the written statement were again pressed into service by the defendant.

4. By way of the impugned order, learned Trial Court has dismissed the application filed by the plaintiff on the ground that as it was the allegation of the plaintiff that the defendant had encroached upon