SHRI MOTI RAM Vs. SHRI TIKAM RAM

JUDGEMENT

(1.) The appellant having been unsuccessful before both the Courts below is now before this Court by way of present regular second appeal. The suit filed by him as plaintiff against the respondent being the defendant for grant of decree for perpetual prohibitory injunction to the effect that the defendant be permanently restrained from laying the rope way over the suit land comprising of Khasra No. 268 of Khata No. 171, Khatauni No. 174, measuring 2-2-0 bighas, situate at Phati Tinder, Kothi Nohanda, Tehsil Banjar, District Kullu and from cutting the trees from the suit land or in any other manner whatsoever, was dismissed by the learned trial Court mainly on the premises that the rope way in question had already been laid/constructed before filing of the suit and at that time, there was no objection to the same on his behalf. It was further held that the plaintiff failed to show that the rope way was in fact laid/constructed over the suit land.

(2.) The above concurrent findings of fact have been challenged in the present appeal on the following substantial questions of law as framed at page 5 of the Paper Book:

(3.) The other question of law which according to the plaintiff is a substantial question of law is relating to interpretation of the provisions of Order 26, Rule 9 of the Code of Civil Procedure, 1908 (the Code). Admittedly, the prayer for appointment of Local Commissioner was made even before settlement of issues. It has been disposed of by the learned trial Court by a well reasoned order dated 6.11.2007. The purpose of commissions to make local investigations stipulated under Order 26, Rule 9 of the Code is for the purpose of elucidating any matter in dispute etc. etc. However, in the present case, the parties were yet to enter into evidence and the dispute till that stage was only by way of the pleadings set up on their behalf. Had they led any evidence and had there been any ambiguity therein, the same could very well be elucidated with the help of a Local Commissioner. In such situation, the evidence already on record could be appreciated properly by the Court with the help of the report of the Local Commissioner, but in the present case, there was no such evidence at the time when the application for appointment of Local Commissioner was moved on 7.11.2007.