HARBANS SINGH Vs. JAGAT RAM

JUDGEMENT

(1.) By way of this petition filed under Article 227 of the Constitution of India, a prayer has been made for setting aside order dated 13.02.2019, passed by the Court of learned Civil Judge (Sr. Divn.), Nalagarh, District Solan, H.P. in CMA No. 169 of 2019, filed in Civil Suit No. 20-1 of 2013, titled as Harbans Singh and another versus Sh. Jagat Ram and others, vide which, an application filed by the present petitioners, who are the plaintiffs before the learned Trial Court, under Order 26, Rule 9 of the Code of Civil Procedure (hereinafter referred to as the 'Code'), has been dismissed by the learned Trial Court.

(2.) Brief facts necessary for adjudication of the present case are that the petitioners (hereinafter referred to as the 'plaintiffs') have filed a suit for permanent prohibitory injunction and mandatory injunction/possession against the defendants with regard to the suit land. At the stage of arguments, an application was filed by the plaintiffs under Order 26, Rules 9 and 10 of the Code for appointment of the Local Commissioner for fixing the boundary points of the suit land. It was mentioned in the application that the main dispute between the parties was with regard to fixation of the boundary and the litigation will not be resolved till the boundaries of the suit land are not fixed by an expert Revenue Officer by way of demarcation. Prayer was thus made in the application for appointment of some Revenue Officer as Local Commissioner to fix the boundaries of the suit land with adjoining land of the defendants.

(3.) This application was resisted by the non applicants/defendants inter alia on the ground that no encroachment over the land of the plaintiffs by the defendants was there as alleged by the plaintiffs. It was further mentioned in the reply that defendants had raised construction in their own land. Earlier also, a Local Commissioner stood appointed to ascertain this fact and his report was on record. The Commissioner was summoned by the plaintiffs as their own witness and his report categorically demonstrated that defendants had raised construction on their own land. It was further mentioned in the reply that Local Commissioner could not be appointed to create evidence for a party as it was the duty of the parties to prove their respective cases. It was further mentioned in the reply that encroachment was to be proved by the party alleging it.