Arihant Jain Society vs Gian Kaur

R.L. Anand, J.—Heard.

This is a civil revision and has been directed against the order dated 7.11.2000 passed by Civil Judge (Jr. Division), Ludhiana, who dismissed the application of the petitioner-defendants under Order 26 Rule 9 C.P.C. for the reasons given in paras 3 and 4 of the im- mgned order, which read as under :-

"3.1 have heard Id. counsel for the parties and have gone through the entire judicial file with their able assistance. The Id. counsel for the defendant/applicant argued that local Commissioner is warranted by law as the dispute is basically regarding identity, location and measurement of respective properties. He has also given certain judgment in order to support his arguments. The Id. counsel for the applicant/defendant has cited Alark Singh v. Smt. Durga Devi and others 1993(2) S.L.J. 1252:1993(3) RRR 285 wherein Hon''ble Himachal Pradesh High Court has held that "Local investigation can be ordered at an early stage also depends upon nature of controversy involved in the suit - If the dispute is simply in respect of identification, location and measurement of land or premise or object, which can be best ascertained on the spot instead of adducing evidence, local investigation should be ordered at an early stage". The Id. counsel for the applicant/defendant has also cited Mahnedranath Parida v. Purnananda Parlda 1983 C C C 79 (Orissa), Civil Revision No. 451 of 1986, D/3.9.1987, wherein the Hon''ble Orissa High Court held that "Local Commissioner -where the controversy is as to identification, location or measurement of the land or premise or object - local investigation should be done at an early stage."

The various judgment cited by the Id. counsel for the applicant/defendant cannot be considered because in the present case the matter is not just regarding identification or measurement of the respective property. From the perusal of the case file it is quite clear that the property regarding which local Commissioner is asked to be appointed is very much part of the property in dispute and it is not correct that the land in dispute had no co-relation or concern with the land purchased by the defendant No. 4 and 5. Moreover the applicant/defendants are free to defend themselves on the basis of evidence which they would adduce in the course of time.

I have fortified my opinion on the basis of judgment delivered by Hon''ble Punjab & Haryana High Court in Garcharan Singh v. Kehar Singh 1997(1) C C C 115 (P$H): 1996(3) RRR 673 (P&H), wherein Hon''ble Punjab & Haryana High Court held that "Possession -Question is to be determined by the Court - Such a question cannot be left on the local Commissioner". In another case Charanjit Singh v. Si-kattar Singh, 1999(3) RCR132 (P&H): 1999(3) CC C 143 (P&H), the Hon''ble Punjab & Haryana High Court held that "local Commissioner cannot be appointed to report as to which of the party is in possession of the house in dispute because it would amount to delegate the power of court to determine the real issue in the case."

I have heard the learned counsel for the petitioners and with his assistance have gone through the impugned order. I do not find any perversity or impropriety in the same. Hence this revision is dismissed.

Any opinion formulated by the learned Civil Judge (Jr. Division), Ludhianain the impugned order will not effect the merits of the case.

Revision dismissed.