Bachhitar Singh vs Krishan Kumar

Deepak Gupta, J.—This petition is directed against the order dated 1.12.2010 whereby the learned Addl. District Judge-II, Kangra at Dharamshala rejected the application filed by the Petitioner-Plaintiff (hereinafter referred to as the Plaintiff) for appointment of Local Commissioner. The Plaintiff in the suit claimed that there is a path which is being used by him, on which the Defendant is raising construction and thereby the easementary rights of the Plaintiff are being obstructed.

The suit was dismissed by the learned Trial Court which came to the conclusion, that there was an alternative path in the form of a "Challi" existing on the spot and therefore, the Plaintiff was not entitled to any relief.

The Plaintiff filed an appeal in the year 2007 and thereafter filed an application under Order 26 Rule 9 of.Code of Civil Procedure for appointment of a Local Commissioner. The learned Lower Appellate Court rejected this application. Hence the present petition.

It is well settled law that Local Commissioner cannot be appointed to create evidence for a party or to fill up a lacunae in the absence of the party. The question whether an alternative path exists or not, is a question which has to be decided on the basis of evidence led by the parties and no local commissioner is required for this purpose. Therefore, I find no merit in the petition which is accordingly dismissed. No costs.