Civil Revision No.5981 of 2008 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CR No.5981 of 2008 (O&M) Date of Decision:02.07.2010 Jagbir Singh & others ...Petitioners Versus Darshan Singh & others .....Respondents Coram: Hon'ble Mr. Justice Rakesh Kumar Garg Present: Mr. H.R. Bhardwaj, Advocate for Mr. J.S. Brar, Advocate for the petitioners. ..... Rakesh Kumar Garg, J. (Oral) This is defendants’ revision petition challenging the impugned order dated 27.02.2008 passed by learned Additional Civil Judge, (Sr. Divn.), Zira vide which application filed under Order 26 Rule 9 of CPC for appointment of Local Commissioner, at the instance of the defendants-petitioners was rejected. As per the averments, plaintiffs-respondents filed a suit for permanent injunction for restraining the petitioners from interfering in their peaceful possession of land measuring 9 Kanals comprising in Khewat No.601 Khatauni No.1051, Khasra Nos.137 min (9-0) as per Jamabandi for the year 2005-06, situated in the area of Village Chhihan Pari, Tehsil Zira. The aforesaid suit was filed by the respondents claiming themselves to be co-sharers to the extent of 7/585 share in the entire land measuring 98 Kanals, 13 Marlas comprising in Khewat No.601 which includes the suit land as aforesaid. It was further submitted that Bhagwan Singh father of the defendant was also a co-sharer in the entire land measuring 98 Kanals, 13 Marlas comprising in Khewat No.601 to the extent of the 16/ ½/585 share but Civil Revision No.5981 of 2008 2 the defendants were not co-sharer in the suit land. It was further alleged in the suit that plaintiffs-respondents were in cultivating possession as of the suit land and the defendants were in possession of land which comprised in Khatauni No.1052. Since defendants were threatening to dispossess the plaintiffs-respondents, the suit for permanent injunction was filed on the ground that no co-sharer can disturb the possession in the suit land. The aforesaid suit was contested by the petitioners submitting that plaintiffs were in possession of 1 Kanal 3 Marlas of land out of land in dispute and the petitioners were in possession of remaining portion measuring 7 Kanals, 17 Marlas and the petitioners have constructed their house etc. in the aforesaid land and therefore suit of the plaintiffs-respondents was liable to be dismissed. During the pendency of the suit, petitioners filed an application for appointment of Local Commissioner vide Annexure-P1 to verify the following facts:- (i) Whether there is a residential house of defendants in the land in dispute. (ii) Whether an electric connection and tube well is installed in the land in dispute. (iii) Whether a passage constructed by the Gram Panchayat is still in existence and leads to the house of defendants. The application filed by the petitioners was dismissed by the trial Court observing as under:- “I have given the thoughtful consideration to the submissions of both the sides and gone through the documents on the file. In this case the defendants are alleging existence of the house, passage and tubewell connection in the land in dispute. Onus lies upon them to Civil Revision No.5981 of 2008 3 prove existence of the said house, passage and tubewell in dispute by way of leading evidence. It is settled law that the Local Commissioner cannot be appointed for creating evidence and for the purpose proving facts regarding existence of the above said things i.e. house, passage and tubewell and defendants have to lead evidence in this regard. If the Local Commissioner is appointed for the purpose of the identification/existence of the above said house, tubewell and passage then it will amount to the creation of the evidence which is not permissible as per provisions of law. Thus the application moved by the defendants for the appointment of Local Commissioner is without any substance and same is hereby dismissed without expressing any opinion on the merits of the case.” I have heard learned counsel for the petitioners. From the prayer made in the application for appointment of Local Commissioner, it is crystal clear that in this case petitioners are alleging existence of their house along with its drain, passage, tube well electric connection in the land in dispute. Onus lies upon them to prove the aforesaid facts by way of leading their evidence. It is settled proposition of law that the Local Commissioner cannot be appointed to collect evidence on behalf of a party. In this view of the matter, I have found no merit in this revision petition. Accordingly the same is dismissed. However, the petitioners are at liberty to prove their case in accordance with law by leading evidence, in accordance with law. (Rakesh Kumar Garg) JUDGE 02.07.2010 sharmila