IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 296 of 2007 Judgment reserved on:23.5.2008 Date of Decision: July 4, 2008 Lachhu Ram and others ..Petitioners Versus. Kuldeep and another ..Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? yes For the Petitioner(s): Mr. Satyen Vaidya, Advocate. For the Respondent(s): Mr. G.D.Verma, Sr.Advocate with Mr. Romesh Verma, Advocate, 1 & 2. Deepak Gupta, J This petition under Article 227 of the Constitution of India is directed against the order dated 12.10.2007 passed by the learned Civil Judge (Senior Division), Rampur rejecting the application filed by the petitioners (hereinafter referred to as the plaintiffs) for appointment of a Local Commissioner. Briefly stated the facts of the case are that the plaintiffs filed a suit for permanent prohibitory and mandatory injunction and also for possession. The plaintiffs claimed that they are owners in possession of land measuring old khasra Nos. 5075/1472/1 min, - 2 - 5075/1452/1 min, 5077/1452/3 min, 1454, 5075/1452/2min and 5076/1452/2 min situate in up-Muhal Thinu (Jabalpur), Tehsil Kumarsain, District Shimla, HP. The defendants are also admitted to be the owners of land comprised in old khasra Nos. 1456and 1457. According to the plaintiffs, during settlement operations, new khasra numbers were allotted and the khasra numbers allotted to the plaintiffs are 18, 19, 20, 21, 22, 23, 25 and 25/1. According to the plaintiffs, new khasra numbers allotted to the defendants are 30, 31, 32, 33 and 34. According to the plaintiffs the land of the defendants is situated above the land of the plaintiffs and in between the two lands a common path comprised in khasra Nos.1455 min and 1453 min (old) exists which have now been allotted new khasra Nos. 24 and 27. The plaintiffs further allege that path also existed in old khasra No 1454 min and 1456 min. This land is owned by the State of H.P. The plaintiffs further allege that the land of plaintiff No.2 comprised in khasra Nos. 1454 min was correctly reflected in the revenue record as ‘Gair Mumkin Makan’, but the settlement staff in connivance with the defendants while allotting new khasra numbers 25 and 25/1 to the said khasra showed the same as ‘Gair Mumkin Rasta’. The plaintiff No.2 made - 3 - representation to the Settlement Collector for correction of the revenue entries. It was ordered that khasra No.25/1 be recorded as ‘Gair Mumkin Sehan’ but khasra No. 26 has been ordered to be recorded as ‘Gair Mumkin Rasta’. It is further alleged that a landslide took place in the area and the land of the defendants which is on the upper side slipped out on the path. The defendants did not remove the accumulated landslide and also did not clear the path. Thereafter the plaintiff No.2 applied for demarcation of the land. According to the plaintiff No.2, though the demarcation was done, it was not effected properly and in the demarcation report khasra numbers 25 and 26 were wrongly shown to be in the ownership and possession of the defendants. Thereafter the defendants also fenced the area and completely closed the path. Hence the suit. The defendants contested the suit on various grounds and denied the existence of the path as claimed by the plaintiffs. According to the defendants, the path even prior to the settlement went through the land of the plaintiffs and the plaintiffs had turned the land into their compound and therefore, wanted to show the path on a different portion of the land. They also denied the correctness of the order passed by the revenue - 4 - authorities. According to the defendants, the path before the settlement, passed through khasra numbers 1453, 1454 and 1455. On the pleadings of the parties, issues were framed and one of the issues framed was ‘whether public path existed over the land denoted by khasra Nos. 24 and 27 as alleged?’ Another issue framed was that ‘whether the plaintiffs are entitled to recover possession of the land comprised in khasra No. 25/1. Parties led evidence and the case was fixed for arguments. At this stage, an application was filed that a local commissioner be appointed to inspect the spot, demarcate the land on the basis of old and new Musavi and take final decision on the spot. This application was contested. This application was rejected vide the impugned order mainly on the ground that this application has been filed after the evidence had already been led and it is an attempt to fill up the lacuna in this case. I have heard Shri Satyen Vaidya learned counsel for the petitioners/plaintiffs and Shri G.D.Vema, learned senior counsel for respondents/defendants. There is no manner of doubt that the application in the present case was moved at a belated stage i.e. when - 5 - the case was fixed for arguments. However, this does not mean that such an application should have been rejected only on this ground. In a matter where there is delay in filing the application but the other side can be compensated with costs, the application can be allowed. Shri Satyen Vaidya learned counsel for the plaintiffs has relied upon a number of judgments of this Court especially the judgment delivered in RSA No. 471 of 2003 titled Udai Ram v. Ram Lal whereby this Court held that where the dispute between the parties is a boundary dispute, the Court should ordinarily appoint a Local Commissioner to inspect the spot. Reliance has been placed by the learned counsel on a judgment rendered by a learned Single Judge of this Court in Bali Ram v. Mela Ram and another 2002 (3) Shim. L.C.131. This Court held that where the plaintiff has done whatsoever was in his power and the dispute is boundary dispute, it is the duty of the Court to ensure that substantial justice should be delivered to the parties. In Bali Ram’s case (supra), this Court held as follows:- “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 required for the purpose of elucidating any matter in dispute. Though the object of the local investigation is not to collect - 6 - 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 circumstances 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. 15. In the case in hand, as already stated, the preparation of the Tatima correctly was not within the powers of the parties and they did whatever was possible on their part. Therefore, after coming to the conclusion that a part of the suit land is in possession of the plaintiff and the defendant is interfering with his possession, it is necessary for fair and just decision of the case to ascertain the actual position of the spot which can be best ascertained by issue of a commission at the cost of the parties.” In the present case, from the facts narrated above, it is apparent that the dispute in question is a boundary dispute. There is no doubt that the path did exist. The dispute is on what khasra number this path exists. This issue can be best decided by a revenue officer, who can demarcate the land and identify the land on which the - 7 - old path existed and also where the path exists as on date. After going through the issues and pleadings of the parties, I am of the considered view that in the matter like the present one, the learned trial Court could not have decided the same without getting the land demarcated. The dispute between the parties is really a boundary dispute and can be solved only by demarcation of the land in dispute. The plaintiffs claim that the path exists on certain khasra number whereas the defendants claim otherwise. In such a situation, the only course open to the trial court is to appoint a local commissioner. This application could not have been rejected on the ground that it would amount collecting evidence on behalf of the parties. The appointment of a Local Commissioner to demarcate the suit land in a case involving dispute regarding boundaries would not amount collecting evidence on behalf of either party. Reference may be made to Prithi Singh v. Bakshi Ram and another, Latest HLJ 2006 (HP) 5 In view of the above discussion, the petition is allowed and the order of the learned lower appellate court is set aside. However, since the application was - 8 - moved belatedly, the same is allowed subject to payment of Rs.3000/- as costs. The costs be paid to the defendants before the trial Court on or before the next date of hearing. In case the costs are not paid, this petition shall be deemed to have been dismissed. July 4, 2008 (Deepak Gupta ), J. s.