Shri Natholi vs Samai Singh and Others

L.N. Mittal, J.—Defendant No. 1 has filed the instant revision petition under Article 227 of the Constitution of India assailing order dated 14.11.2009, Annexure P/1 passed by learned Civil Judge (Junior Division), Faridabad thereby allowing application Annexure P/2 moved by respondents No. 1 and 2 - plaintiffs for appointment of Local Commissioner. Accordingly, Mr. Himanshu Singhal, Advocate has been appointed as Local Commissioner to visit the suit property and to report about the existing state of affairs.

The dispute between the parties is regarding existence of a passage. The plaintiffs claim that there is passage in front of their house whereas defendants have denied the existence of the said passage.

I have heard Learned Counsel for the parties and perused the case file.

Learned Counsel for the petitioner vehemently contended that Local Commissioner cannot be appointed to create evidence for the plaintiffs or to determine the controversy regarding existence or non-existence of the alleged passage.

On the other hand, Learned Counsel for respondents No. 1 and 2 contended that Local Commissioner has been appointed to only report about the existing state of affairs and for this purpose Local Commissioner can be appointed.

I have carefully considered the rival contentions. There is no dispute with the proposition that Local Commissioner cannot be appointed either to determine the existence or non-existence of the disputed passage or to report about possession of either party over the disputed site. However, at the same time, Local Commissioner can certainly be appointed to report about factual position existing at the spot.

In view of the aforesaid, the instant revision petition is disposed of by clarifying that the Local Commissioner appointed by the trial court shall report only about the factual position what is found at the spot but shall not report about the existence or non-existence of the passage or possession of either party over the disputed site.