Ajay Mohan Goel DECISION
Ajay Mohan Goel, J.
1. By way of this petition filed under Article 227 of the Constitution of India, the petitioners have challenged order, dated 11.03.2019, passed by the Court of learned Civil Judge (Junior Division), Jawali, District Kangra, H.P., in CMA No. 61/2019 in Civil Suit No. 115/2016, titled as Harnek Singh Vs. Naseeb Been and another, vide which an application filed by the respondent herein under Order XXVI, Rule 9 of the Code of Civil Procedure (hereinafter referred to as 'the Code') for appointment of a Revenue Officer as a Local Commissioner stands allowed.
2. Brief facts necessary for the adjudication of the present case are that respondent/plaintiff has filed a suit against the petitioners/defendants seeking a decree of injunction for restraining the defendants from raising any construction, dispossessing, interfering, cutting, felling and removing the trees standing upon the suit land. In the alternative, the plaintiff has also prayed for possession of the suit land. The suit has been filed in October, 2016.
3. During the pendency of the said suit, the plaintiff has filed an application under Order XXVI, Rule 9 of the Code for appointment of any Revenue Officer of Tehsil Fatehpur or Sub Division Jawali as Local Commissioner for locating the exact nature and extent of encroachment by the defendants and fixing boundaries of the suit land. It was averred in the application that the parties were having strained relation with each other; despite a status quo order having been passed, the defendants were interfering in the suit land; and they were also encroaching upon the suit land, hence appointment of a Local Commissioner was necessary for locating the exact nature and extent of encroachment by the defendants.
4. The application was resisted by the defendants, inter alia, on the ground that it was always open to the plaintiff to have had approached the Revenue Authorities for getting the land demarcated and the Court is not to create evidence for either of the parties. It was further the case of the defendants that they were not interfering in the suit land nor they had any intention to do so and they were in possession of their property pursuant to the recent partition having entered into between the parties and the plaintiff was estopped from filing the application. It was denied by the defendants that they were encroaching upon the suit land, as alleged.
5. Vide impugned order, learned Trial Court has allowed the application so filed by the plaintiff under Order XXVI, Rule 9 of the Code by holding that as issues were not yet framed in the main suit and as proceedings in the case were at a preliminary stage, therefore, the Court was of the opinion that if a Local Commissioner in the case was appointed, no prejudice shall be caused to the defendants, rather it will help in the proper and final adjudication of the dispute between the parties.
6. Feeling aggrieved, the petitioners, who are the defendants before the learned Court below have filed the present petition.
7. Learned counsel for the petitioners has argued that the impugned order is not sustainable in the eyes of law, as the same has been passed by the learned Court below in a hot haste, without even realizing that as even the issues were not yet framed, there was no necessity of such an application being entertained by the learned Trial Court. Because it was the allegation of the plaintiff that the suit land stood encroached upon by the defendants, onus was upon him to prove the same and it was not for the Court to create evidence in favour of the plaintiff.
8. On the other hand, learned counsel for the respondent/plaintiff has argued that there is no perversity with the impugned order, as learned Court below has rightly allowed the application to put an end to the lis between the parties, because the demarcation if carried out, would demonstrate as to whether there is any encroachment upon the suit land or not and the same would assist the Court in the adjudication of the case.
9. Having heard learned counsel for the parties, this Court is of the view that the impugned order is not sustainable in the eyes of law. It is not in dispute that the application under Order XXVI, Rule 9 of the Code was filed by the plaintiff before the learned Trial Court even before the issues stood framed by the learned Court below. It is the allegation of the plaintiff that the defendants are encroaching/have encroached upon the suit land. It is settled preposition of law that he who alleges, has to prove. Meaning thereby, because it is the contention of the plaintiff that the defendants have encroached upon the suit land or are encroaching upon the same, onus is upon him to prove his case. There is no material on record to demonstrate that the plaintiff, at any stage, has approached the Revenue Authorities, for demarcation of the land in issue. In these circumstances, filing of the application by the plaintiff at the stage when not even issues were framed by the learned Trial Court, but obvious was an attempt to create evidence in his favour and this important aspect of the matter has been completely overlooked by the learned Court below. In other words, in the present case, learned Trial Court has fallen into the trap of the plaintiff by allowing the application so filed by the plaintiff and this has let out a helping hand to the plaintiff to create evidence in his favour at a stage when not even the issues were framed.
10. Order XXVI, Rule 9 of the Code, inter alia, provides that in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. Meaning thereby that it has to be the satisfaction of the Court that a local investigation is necessary or proper for the purpose of elucidating any matter in dispute. This provision is not a tool which is to be permitted to be used by the parties concerned to create evidence in their favour. This important aspect of the matter has also been lost sight of by the learned Trial Court while passing the impugned order.
11. Accordingly, in view of the observations made hereinabove, this petition is allowed. Impugned order, dated 11.03.2019, passed by the Court of learned Civil Judge (Junior Division), Jawali, District Kangra, H.P., in CMA No. 61/2019 in Civil Suit No. 115/2016, titled as Harnek Singh Vs. Naseeb Deen and another, is set aside. The petition stands disposed of, so also pending miscellaneous applications, if any.
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