Madan Lal vs Alam Singh

Chander Bhusan Barowalia, J.

1.The present petition, under Article 227 of the Constitution of India, has been maintained by the petitioner/plaintiff (hereinafter to be called as “the

plaintiffâ€), against the order dated 21.12.2017, passed by learned Civil Judge (Jr. Div.), Jogindernagar, District Mandi, H.P., whereby an application

under Order 26, Rule 9 CPC, filed by the plaintiff for appointment of the Local Commissioner has been dismissed.

Briefly stating facts giving rise to the present petition are that the plaintiff filed a Suit for permanent prohibitory injunction and for mandatory

injunction, underSection 38 & 39 of the Specific Relief Act against the defendant, wherein he alleged that the suit land, i.e. Khasra No. 1623, situated

in Mohal Ropari/79, Tehsil Jogindernagar is joint land and the house of the plaintiff is situated in adjoining Khasra No. 1624 of the same Mohal. It has

been further averred that through the suit land there exist a path to the house and cow shed of the plaintiff, where the defendant has constructed a

septic tank and now he is creating hindrance in order to ingress and outgress the plaintiff and other co-sharers from the path, therefore appointment of

the Local Commissioner is necessary to elucidate the matter in dispute.

In reply to the application, the defendant has taken preliminary objection qua maintainability. On merits, it has been averred by the defendants that

the application has been moved just to create evidence, as the plaintiff has miserably failed to establish the factum of existence of path, hence the

application may be dismissed.

Learned Court below vide order dated 21.12.2017, dismissed the application, so filed by the plaintiff, hence the present petition.

Ms. Komal Chaudhary, learned counsel for the petitioner has argued that the order of the learned Court below is without appreciating the facts and

law to the effect that Local Commissioner was required to be appointed, as present is a boundary dispute. In support of her contentions, learned

counsel for the petitioner placed reliance upon the judgments of this Hon’ble High Court, rendered in Bali Ram vs. Mela Ram, AIR 2003 (HP) 87

and Moti Ram vs. Tikam Ram’s case, latest HLJ 2010 (HP) 711. On the other hand, Mr. Vinod Chauhan, learned vice counsel appearing on

behalf of the respondent has argued that present is not a boundary dispute and the plaintiff, after availing three opportunities for addressing arguments,

after the completion of the evidence has moved the application, which is nothing, but creation of evidence and the Court is not required to create

evidence for the party, so the learned Court below has rightly dismissed the application of the plaintiff for appointment of a Local Commissioner.

Learned vice counsel appearing on behalf of the respondent, in support of his contentions, placed reliance upon the judgment of a Coordinate Bench of

this Hon’ble High Court, rendered in Pawan Kumar vs. Pradeep Kumar’s case, Latest HLJ 2015 (HP) 998.

The case of the plaintiff is that his residential house is situated in the adjoining Khasra number 1624 of the suit land, which is situated towards the

upper side to his house and his cowshed is situated towards the upper and back side to the house of the defendant. As per the plaintiff, there existed a

path over the suit land, which goes to his cowshed and the inhabitants of the village also use this path to approach the road. However, in 2011, the

defendant with some malafide intention, started digging the said path in order to construct a septic tank. Though, the plaintiff has objected at the time

of digging and constructing of the septic tank, however the defendant assured him that the tank would be under ground and it will not block the path in

any manner, as the plaintiff, as well as other inhabitants of the village are using the said path to approach the road. Thereafter, the defendant also

raised danga/wall upto the height of 2-3 feet over the path and again the plaintiff objected for the same, but the defendant ensured the plaintiff that he

will construct and make the path to approach his cowshed, as well as for the other inhabitants of the village. However, after completing the

construction, the defendant blocked the path by putting some hurdle, so that the plaintiff and inhabitants of the village cannot go easily from that path.

Thus, the plaintiff reported the matter to the Gram Panchayat Ropari, but nothing needful could be done.

In the month of November, 2013, the plaintiff once again compelled to bring the matter before Gram Panchayat Ropari and on the application of the

plaintiff, the President Gram Panchayat Ropari visited the spot on 08.01.2014, but he shown his inability to do anything. As per the plaintiff, the house

of the defendant is situated in upper side, thus the defendant with malafide intention diverted the water channel towards the house of the plaintiff,

which may cause landslide and would be endanger to human life. Though, on 15.04.2014, the plaintiff requested the defendant to mend the path and

divert the water channel, but the defendant straightaway refused the request, so made by the plaintiff and further threatened the plaintiff that he will

permanently block the path. In these circumstance, the application for appointment of a Local Commissioner is required to be considered.

On the other hand, the defendant in his written statement submitted that the plaintiff has recently constructed the cowshed over the Government

land and against him, encroachment proceedings are pending before the learned Assistant Commissioner, Jogindernagar. It has been further submitted

in the written statement that the plaintiff is trying to trespass the part of the suit land, which is exclusive possession of the defendant just to make path

to the cowshed and the plaintiff has filed this false and frivolous case, in order to compel the defendant to allow him to enter in his land.

From this, it appears that there is dispute with respect to the fact that whether path was there or not and whether cowshed is there or not. As per

the defendant, the plaintiff has constructed cowshed on the Government land and he want to use the land of the defendant for going to the cowshed.

Meaning thereby, that there is some dispute with respect to the path, leading to the cowshed. Now whether the path is there or not, is a matter of fact,

which can be easily determined, if a Local Commissioner is appointed, as he/she is the best person, who after visiting the spot, can give its report, with

regard to the existence of the path.

A co-ordinate Bench of this Hon’ble High Court in Bali Ram vs. Mela Ram, 2003 (HP) 87, has held as under: “13. Rule 9 of Order 26 of

the Code of Civil Procedure (hereinafter referred to as ‘the Code’), empowers the Court to issue commission to make local investigation which

may be required for the purpose of elucidating any matter in dispute. Though the object of the local investigation is not to collect evidence which can

be taken in the Court, but the purpose is to obtain such evidence, which from its peculiar nature, can only be had on the spot with a view to elucidate

any point which is left doubtful on the evidence produced before the Court. To issue a commission under Rule 9 of Order 26 of the Code, it is not

necessary that either or both the parties must apply for issue of commission. The Court can issue local commission suo motu, if in the facts and

circumstance of the case, it is deemed necessary that a local investigation is required and is proper for the purpose of elucidating any matter in

dispute. Though exercise of these powers is discretionary with the Court, but in case the local investigation is requisite and proper in the facts and

circumstances of the case, it should be exercised so that a final and just decision is rendered in the case.â€​

A co-ordinate Bench of this Hon’ble High Court in Moti Ram vs. Tikam Ram, Latest HLJ 2010 (HP) 711, has held as under: “3 The other

question of law which according to the plaintiff is a substantial question of law is relating to interpretation of the provisions of Order 26, Rule 9 of the

Code of Civil Procedure, 1908 (the Code). Admittedly, the prayer for appointment of Local Commissioner was made even before settlement of issues.

It has been disposed of by the learned trial Court by a well reasoned order dated 6.11.2007. The purpose of commissions to make local investigations

stipulated under Order 26, Rule 9 of the Code is for the purpose of elucidating any matter in dispute etc. etc. However, in the present case, the parties

were yet to enter into evidence and the dispute till that stage was only by way of the pleadings set up on their behalf. Had they led any evidence and

had there been any ambiguity therein, the same could very well be elucidated with the help of a Local Commissioner. In such situation, the evidence

already on record could be appreciated properly by the Court with the help of the report of the Local Commissioner, but in the present case, there was

no such evidence at the time when the application for appointment of Local Commissioner was moved on 7.11.2007. 4. For the foregoing reasons, the

second question of law can also not be said to be a substantial question of law in the peculiar facts and circumstances of the present caseâ€Meaning

thereby, that the Local Commissioner is required to be appointed after the evidence has been led. In the present case also the evidence has already

been led, so this judgment is in favour of the plaintiff.

As far as the judgment (supra) cited by the learned counsel for the respondent is concerned, the same is not applicable to the facts of the present

case, as in the present case the plaintiff has already led evidence and has shown prima facie to the Court that there is some dispute with respect to the

path and the Local Commissioner is required to inspect the same.

From the above, it is clear that there is some dispute with respect to the factum of the existence of the path. The case of the defendant, as already

discussed hereinabove, is that the path is being created by the plaintiff to go to the cowshed, which he has constructed on the Government land. All

these aspects can only be determined by the Local Commissioner after visiting the spot, which will also help the Court to adjudicate the lis inter se the

parties.

Therefore, the present petition is allowed and impugned order is set aside and the learned Court below is directed to appoint a Local

Commissioner, who after visiting the spot shall submits its report qua the existence of the path on the suit land. Parties through their counsel are

directed to appear before the learned Court below on 30 th May, 2018.

15.In view of the aforesaid terms, the petition, so also pending application(s), if any, shall stand(s) disposed of. However, in peculiar facts and

circumstances of the case, the parties are left to bear their own costs.