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Naseeb Deen and Ors. Vs. Harnek Singh - (High Court of Himachal Pradesh) (19 Jul 2019)

Satisfaction of the Court is pre-requisite for appointment of a Revenue Officer as a Local Commissioner

MANU/HP/0795/2019

Civil

By way of present petition filed under Article 227 of the Constitution of India, 1950, the Petitioners have challenged order, passed by the Court of learned Civil Judge, vide which an application filed by the Respondent under Order XXVI, Rule 9 of the Code of Civil Procedure, 1908 (CPC) for appointment of a Revenue Officer as a Local Commissioner stands allowed.

It is not in dispute that, the application under Order XXVI, Rule 9 of the CPC 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.

Order XXVI, Rule 9 of CPC, 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.

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. Impugned order passed by the Court of learned Civil Judge is set aside. Petition allowed.

Tags : APPOINTMENT   REVENUE OFFICER   LEGALITY  

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