The Himachal Pradesh High Court while dismissing the petition said that the petitioner cannot be permitted to call upon the Court by way of appointment of a Local Commissioner to create evidence to prove his allegation as to whether part of the suit land mentioned in the application filed under Order 26, Rule 9 of the Code of Civil Procedure stood encroached upon by the defendant or not.
A Single Bench of Justice Ajay Mohan Goel passed this order while hearing a petition filed by Sanjeev Kumar alias Sanjeev Raizada.
By way of the petition filed under Article 227 of the Constitution of India, the petitioner has challenged the order passed by the Court of the Senior Civil Judge, Una, District Una, in case titled as Sanjeev Kumara alias Sanjeev Raizada vs Yudhvir Singh, in terms whereof,an application filed by the petitioner under Order 26, Rule 9 of the Code of Civil Procedure before the Trial Court for appointment of the Local Commissioner has been dismissed.
The facts necessary for the adjudication of the petition are that the petitioner/plaintiff has filed a suit against the respondent herein for permanent injunction to the effect that respondent does not interfere or encroach upon or carry out any construction on the suit land by dispossessing the plaintiff forcibly. This suit was filed in the month of May, 2017.
During the pendency of the suit, an application was filed by the plaintiff under Order 26, Rule 9 of the Code of Civil Procedure, in January, 2019, praying for the appointment of a Local Commissioner, being a revenue expert, to visit the spot to demarcate the suit land and report whether the defendant has encroached upon the area referred to in the application or not.
The application has been dismissed by the Trial Court order dated 17.04.2019, by holding that the plaintiff had filed the suit for permanent prohibitory injunction and mandatory injunction, claiming the relief of possession upon the portion which was the part of Khasra, on account of encroachment made by the defendant, which encroachment allegedly was made during the pendency of the suit.
The Court held that the plaintiff had filed an application for amendment of the suit in which there was a specific averment made that portion, which was part of Khasra, was encroached upon by the defendant during the pendency of the suit.
In this background, the plaintiff was now taking a destructive plea by moving the application for appointment of the Local Commissioner on the plea that it was necessary to find as to whether the land in issue was part of Khasra No 6720 or not because this implied that the plaintiff was not aware of his own boundaries and rather he was dragging the Court for collecting evidence on his behalf to prove that certain portion of suit land stood encroached upon by the defendant, the Court noted.
The Court observed that as the plaintiff had placed reliance upon the site plan, therefore, the onus was upon him to prove the same and the provisions of Order 26, Rule 9 of the Code of Civil Procedure could not be invoked so as to involve the Court in the process.
The Court further observed that,
Having gone through the order passed by the Court below and having heard Senior Counsel for the petitioner/plaintiff as also Counsel for the respondent/defendant, the Court does not find any perversity in the impugned order. When it is a matter of record that the petitioner had sought amendment in the suit on the ground that during the pendency of the suit, certain part of the suit land stood encroached by the defendant, this presupposes that the petitioner was aware of his boundaries and only thereafter, he levelled allegations against the respondent of encroaching upon his land.
The Court reiterates that as it is the specific allegation of the plaintiff that part of the suit land mentioned in the application was encroached by the defendant during the pendency of the suit, now to prove this fact, the petitioner/plaintiff has to stand on his own legs by adducing independent and reliable evidence and he cannot invoke the provisions of Order 26, Rule 9 of the Code of Civil Procedure and call upon the Court to generate evidence for him.
Accordingly, the Court dismissed the petition.
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