ONKAR SINGH Vs. TILAK RAJ

JUDGEMENT

(1.) The petitioner complains that the defendant has partially encroached upon his land and fenced it. The defendant denies any encroachment. The suit is one for possession of the suit land measuring 2K 0M out of 9K 10M comprised in Khasra No.61 and a permanent injunction is sought against the defendant restraining him or his agents from interfering in the peaceful possession of his property. When the case was at the stage of evidence, an application under Order 26 Rule 9 read with Section 151 of the CPC was filed for appointment of a Local Commission by a person who is well acquainted with the ways of survey of land. The application was contested.

(2.) The learned trial judge has dismissed the application vide order dated 25.4.2014 against which the present petition has been filed. It is contended that the court below has erred in rejecting the application and a proper exercise of jurisdiction would have been to allow the application so that the dispute could be resolved on the basis of the report submitted by the Local Commission, if it is called for.

(3.) The learned trial judge has observed in the impugned order that a demarcation has already been conducted by the officials of the Revenue Department on the suit land in the presence of the parties and no encroachment of the land of the plaintiff was found in the report submitted. This demarcation was conducted in the presence of the parties. This stand was taken by the defendant in his preliminary objection to the application under Order 26 Rule 9 of the CPC which has not been refuted by the plaintiff by filing replication. If demarcation has already been done in the presence of both the parties, they are free to lead evidence to contradict the demarcation report or support it. But the defendant has no right for redemarcation on the pretext of appointment of Local Commission as that may amount to gathering evidence before the evidence comes in. The learned trial judge is correct in his reasoning that a Local Commission cannot be appointed to create evidence and it is not for the court to delegate this power for collection of evidence which parties may lead. Evidence has not been led so far. The learned trial cannot be abridged by this process. This is not to say that in appropriate cases, the court is powerless in appointing a Local Commission when facts justify and reason dictates. Besides, the discretion exercised by the trial court judiciously does not deserve to be interfered with as an order refusing appointment of a Local Commission is normally not revisable unless it would lead to a failure of justice. In any case, the Court is not bound by the demarcation already done and would apply its mind to the evidence after it has been adduced by the parties on the record of the trial court. It is for the trial court to give just and proper findings on the basis of materials on record placed on case papers.