SOM NATH Vs. GURDEV

JUDGEMENT

(1.) The plaintiff had preferred before, the learned trial Court, an application constituted under the provisions of Order 26, Rule 9 of the Code of Civil Procedure, wherein, he sought relief for appointment of a local commissioner for determining the veracity of his contention qua the defendant encroaching upon a portion of khasra No. 2443, portion whereof stands reflected as ABCD in the site plan appended to the plaint. Under the impugned orders recorded on 27.03.2015, the aforesaid application stood dismissed by the learned trial Court. The plaintiff/petitioner is aggrieved by the impugned order, hence, concerts to assail it, by instituting the instant Civil Revision before this Court.

(2.) The reasons as assigned by the learned trial Court for dismissing the aforesaid application, is comprised in the factum of (a) with no boundary dispute arising inter se the parties at contest, hence, there was no necessity to order for appointment of a local commissioner for demarcating the contiguous estate(s) of the parties at contest, concomitantly hence, it was not necessary to also determine whether a portion of suit land, depicted as ABCD in the site plan appended to the plaint, being encroached upon by the defendant nor there being a necessity to appoint a local commissioner; (b) the plaintiff being enjoined to prove his case by leading evidence with respect to portion ABCD reflected in the site plan being encroached upon by the defendant; and (c) there being no solemn obligation under law upon the trial Court to create evidence in favour of the plaintiff for sustaining the trite pleaded fact aforesaid.

(3.) The aforesaid reasons as assigned by the learned trial Court for dismissing the aforesaid application, suffer enfeeblement, for reasons ascribed hereinafter:- (I) Even though, it was imperative for the plaintiff to along with his plaint append a copy of the apposite demarcation report prepared by a Revenue Officer concerned, yet omission aforesaid may not extantly dis-empower him to, through the aegis of the learned trial Court, aspire for the latter clinching the fact of the defendant encroaching upon portion ABCD reflected in the site plan appended to the plaint, portion whereof is averred by the plaintiff to form part of the suit khasra number. The reason for making the aforesaid conclusion is anvilled upon the fact that since the site plan, wherein, portion ABCD is depicted to be the apt portion encroached upon by the defendant, not standing prepared by a Revenue Officer rather it being prepared by a draftsman. Also, hence, the factum of its preparation, makes a vivid display of the plaintiff not rearing either a specious nor a spurious claim in respect thereto upon the defendant. Contrarily, it appears of the plaintiff, hence, prima facie rearing a bonafide case upon the defendant. Consequently, the endeavour of the plaintiff to seek appointment of a local commissioner, was hence merely for facilitating the learned trial Court, to clinch the issue relating to the fact of the defendant encroaching upon portion ABCD depicted in the site plan appended to the plaint, portion whereof is averred to be a part of suit khasra number. Moreover, furnishing of an apposite report by a local commissioner, in sequel, to his holding a valid demarcation of the contiguous estate(s) of the parties at lis would ensure adduction of best evidence in respect of the pleaded fact, before the learned trial Court, whereas, the benumbing of the endeavour of the plaintiff, by the learned trial Court hence refusing to order for appointment of Local Commissioner, has contrarily begotten an inapt sequel of its scotching eruption of best evidence for its resting the trite pleaded factum aforesaid.