Ghullo Devi vs Prithi Raj

Rajiv Sharma, J.—This petition is instituted against the order, dated 11.4.2013, rendered by the learned Civil Judge (Junior Division), Court No. 3, Hamirpur in Civil Suit No. 284 of 2009.

2 Pertinent facts necessary for the adjudication of this petition are that the petitioner/plaintiff (hereinafter referred to as the "plaintiff" for the sake of convenience) filed a suit for permanent prohibitory injunction against the respondent/defendant (hereinafter referred to as the "defendant" for the sake of convenience) to the effect that she was owner in possession of the suit land comprised in Khata No. 16 min, Khatauni No. 18 min, Khasra Nos. 196, 197 and 346, measuring 0.09.04 hectares as per jamabandi for the year 2007-08, situated in Tika Bahdla, Tappa Jangal, Tehsil and District Hamirpur, H.P.. She prayed that the defendant, who was owner of the adjoining land, be restrained from interfering or digging the suit land or raising construction over the suit land in any manner whatsoever. It was also prayed that in case the defendant succeeded in raising forcible construction over the suit land, then the suit be decreed for possession by way of demolition of such construction. The suit was contested by the defendant by filing written statement.

The plaintiff filed an application under Order 26 Rule 9 of the CPC for appointment of Local Commissioner for demarcation of the suit land. The application was contested by the defendant.

Learned Civil Judge (Junior Division) dismissed the application on 11.4.2013. Hence, the petition.

Mr. Vikas Bhardwaj, learned Advocate, has vehemently argued that the defendant had changed the course of the ''nallah''.

This plea was neither taken in the plaint nor in the application under Order 26 Rule 9 of the Code of Civil Procedure. According to the record, the plaintiff was owner of Khasra No. 196 and the defendant was owner of Khasra No. 353. These Khasra numbers are separated by a ''Nallah'' owned by the State Government. The defendant had constructed the green house on her own land. The purpose of filing application under Order 26 Rule 9 of the CPC is not to gather evidence on behalf of the parties. It was for the plaintiff to prove by leading cogent and convincing evidence that her land was adjoining to the land of the defendant.

Their Lordships of Hon''ble Supreme Court in Union of India (UOI) and Another Vs. Kripal Industries, have held that the power of appointment of Commissioner for local investigation cannot be exercised by the Court to assist the party to collect evidence, where it can get evidence itself. Their Lordships have held as under:-

Subscribing the view of Orissa High Court in Basanta Kumar Swain Vs. Baidya Kumar Parida and Others, I hold that power of appointment of Commissioner for local investigation cannot be exercised by the Court to assist party to collect evidence where it can get evidence itself. In the case on hand, the written statement has already been filed, therefore, the disputed question of fact can be adjudicated upon by the Court after framing the issues and recording the evidence of the parties. For such purpose assistance of Commissioner is neither necessary nor justified.

There is no illegality or irregularity in the impugned order dated 11.4.2013 rendered by the learned Civil Judge (Junior Division), Court No. 3, Hamirpur in Civil Suit No. 284 of 2009.

Accordingly, in view of the observations and analysis made hereinabove, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stand dismissed. No costs.