IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 692 of 2009 Reserved on: 18.10.2010 Date of Decision: 28.10.2010 Chinti Devi …Petitioner. Versus. Chain Singh and others …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No. For the petitioner: Mr. Romesh Verma, Advocate. For the respondents: Mr. Mohit Thakur, Advocate. Deepak Gupta, J. 1. This petition is directed against the order of the learned Civil Judge (Junior Division), Ghumarwin, whereby she rejected the application filed by the plaintiff for appointment of a Local Commissioner. 2. Briefly stated the facts of the case are that the plaintiff filed a suit praying that she is owner in possession over the suit land and the defendants have no right, title or interest in the same and be restrained from in any manner changing the nature, digging or raising construction in the suit land. In para 4 of the suit the plaintiff made the following averments:- 2 “That this land has been demarcated on the spot by the Tehsildar Ghumarwin. The defendants are trying to encroach upon a portion of the land which was shown as a part of the suit land in the said demarcation by the Tehsildar Ghumarwin.” 3. This suit was contested by the defendants and one of the grounds taken was that on 7.7.2004 husband of the plaintiff Shri Dharampal and she herself has agreed to maintain the boundaries existing between the parties. According to the defendants both the parties were in possession of the land as per the said agreement. Issues in the suit was framed on 22.08.2007 and the case was listed for evidence of the plaintiff on 19.11.2007 when no PWs were present. On the next date i.e. 23.02.2008 an application under Order 26 Rule 9 was filed for appointment of a Local Commissioner to demarcate the land. In this application the plaintiff asserted that after the institution of the suit the defendants had encroached upon a portion of the suit land and had raised construction thereon in violation of the order of stay granted by the Court. It was further prayed that due to these circumstances the plaintiff would be required to amend the suit to seek the relief of possession and for this purpose it was necessary to 3 get a spot Tatima of the land and the map of construction. The plaintiff alleged that she had tried her level best to procure the Tatima from the revenue official but they refused to give the same on the ground that the matter is pending in the Civil Court and therefore, it was prayed that a revenue officer be appointed as Local Commissioner to verify whether any part of the suit land falls under the construction of the defendants and submit a report alongwith the spot Tatima. Alongwith this application, the plaintiff also filed a copy of the application which she had filed before the revenue authorities for demarcation on which the report was that since the matter is pending in the Civil Court demarcation cannot be granted. 4. This application has been rejected vide impugned order mainly on two grounds:- firstly, that the demarcation has already been given on 24.11.2004 and secondly an agreement had also been entered into between the parties which is on the file of the case. Since the demarcation already given was on the record the learned trial Court was of the view that the application could not be allowed and the applicant could not be permitted to 4 obtain fresh demarcation and create evidence in her favour. 5. At the outset, I may note that I am indeed shocked and surprised to note that this application was filed on 23.2.2008 and it took the trial Court almost two years to dispose of such an application. 6. I have heard learned counsel for the parties. Shri Mohit Thakur, learned counsel for the respondents submits that the provisions of Order 26 Rule 9 cannot be used by the plaintiff to create evidence in her favour. The previous demarcation report which is on record is dated 16.10.2001 and it shows that demarcation of Khasra No.414/354/1 was conducted. The plaintiff in her suit has also referred to such demarcation and in fact as noted here-in- above has not denied the correctness of said demarcation. Once demarcation has been carried out unless the earlier demarcation report is set-aside no fresh demarcation can normally be got conducted. However, the case of the petitioner is that after the previous demarcation was conducted during the pendency of the suit the defendant has encroached upon a portion of the suit land and this has necessitated the request for fresh demarcation of the property. In my view the petitioner will first have 5 to lead evidence to show what was the first demarcation and thereafter it will have to prima facie show that the respondents-defendants have in fact violated the boundaries laid down in the earlier demarcation. It is only thereafter if the learned trial Court finds it necessary, can a local commissioner be appointed. At this stage when only issues had been framed and even the plaint has not been amended seeking any relief of possession the plaintiff cannot seek demarcation. The Court cannot become an agent of the party and a Local Commissioner cannot be appointed only to help a party to collect evidence. In case the Revenue Authorities are not giving Tatima or other documents to the petitioner then the petitioner can either summon them in Court and pray that such documents be given or it can move the higher authorities under the Land Revenue Act with a prayer that the Revenue Officials be compelled to do their duties. I find no error in the order of the learned trial Court and the petition is accordingly rejected. No order as to costs. 28th October, 2010 ( Deepak Gupta ) ™ Judge.