IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5725 of 2010(O&M) Date of Decision: May 3, 2011. Niranjan Singh. ...... PETITIONER(s) Versus Punjab Mandi Karan Board and others. ...... RESPONDENT (s) CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr. G.S.Punia, Advocate for the petitioner. Mr. S.P.Garg, Advocate for respondent No.1. ***** RAM CHAND GUPTA, J.(Oral) CM No.11136-CII of 2011 Application is allowed subject to all just exceptions. CM No.11137-CII of 2011 Requests for placing on record copies of demarcation report and the statement of Swaranjit Singh, Halqa Patwari. The same are taken on record subject to just exceptions. CM stands disposed of. CR No.5725 of 2010 CR No.5725 of 2010 The present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned order dated 24.08.2010, Annexure P1 passed by learned Civil Judge(Junior Division), Malerkotla vide which application of petitioner for appointment of Local Commissioner and directing Tehsildar/Naib Tehsildar to visit the spot and demarcate the land of petitioner-plaintiff comprised in Khasra No.309(3-5), 310(5-19) situated in village Jitwal Khurd, Tehsil Malerkotla, District Sangrur, was dismissed. I have heard learned counsel for the parties and have gone through the whole record including the impugned order passed by learned trial Court. Facts relevant for the decision of the present revision petition are that, suit for possession of the land in dispute duly described in the headnote of the plaint, has been filed by the petitioner-plaintiff against respondents- defendants on the plea that a part of the land owned by petitioner-plaintiff was encroached upon by respondents-defendants while constructing a road without making payment of any compensation to him and hence, it has been contended that possession of the portion of land allegedly encroached upon by respondents be delivered to him or in the alternative compensation be awarded to him regarding the portion of land allegedly encroached upon by respondents. Suit was contested by respondents-defendants on the plea that no portion of the land belonging to petitioner was encroached by respondents-defendants while constructing the road. Issues were framed. Evidence was adduced by both the parties. Case was fixed for rebuttal and 2 CR No.5725 of 2010 arguments when the present application for appointment of a revenue officer as Local Commissioner to demarcate the land comprised in Khasra No.309(3- 5), 310(5-19) owned by petitioner-plaintiff was filed, which was declined by learned trial Court by observing as under:- “3. During the course of arguments Ld.counsel for the parties have argued on the lines of application and reply filed thereto. This Court has gone through the file and considered the submissions made by the Ld. counsels. Perusal of the file reveals that case is already fixed for evidence of rebuttal, if any and for arguments. Given the nature of the case where the plaintiff has sought possession of the land which is allegedly encroached by the defendant, the demarcation report should have been adduced by the plaintiff by way of in affirmative evidence and plaintiff has examined as PW3 Patwari Swaranjit Singh, who had conducted demarcation. In case his demarcation was not complete it was always upon the plaintiff to require this Court to give directions to the said witnesses for demarcation of the property as per law procedure. In case plaintiff did not insist the demarcation to be conducted by providing possession of land, he is debarred from seeking indulgence of the Court to get demarcation conducted at the stage of adducing rebuttal evidence. Accordingly, this Court found no merits in the application and same is dismissed. Now case is adjourned to 9.9.2010 rebuttal evidence, if any and arguments.” It has been contended by learned counsel for the petitioner- plaintiff that though he had got his Khasra numbers demarcated from revenue officer before filing the suit and however, site plan of the dispute Khasra numbers was not prepared and hence, necessity arose for getting the disputed 3 CR No.5725 of 2010 Khasra numbers demarcated again according to rules as per the order of the Court. On the other hand, it has been contended by learned counsel for the respondent No.1 that the disputed Khasra numbers were already got demarcated by petitioner-plaintiff before filing the suit and that no explanation has been given as to why the application was not filed earlier while petitioner-plaintiff was adducing the evidence. This Court in Punjab Wakf Board, Ambala Cantt. v. Shri Neeko, 2004(3) RCR(Civil) 506 has observed that the power of Court under Order 26 Rule 9 of Code of Civil Procedure to order appointment of Local Commissioner is not dependant upon an application to be made by a party. If the Court is of the view that appointment of a local investigation is requisite or proper, it can surely exercise its powers in suo motu, appointing a Local Commissioner. Relevant paragraphs reads as under:- “8. I have heard learned counsel representing the parties and with their assistance examined the records of this case. It is significant to mention that a firm finding of fact has been recorded that Khasra Nos. 3421, 3422 and 3423 are the Wakf properties. It was not the case of the defendant so pleaded, either in the written statement or even during the course of argument at any stage, that the suit property was not recorded as part of Khasra Nos. 3421, 3422 and 3423. It was also not the case so pleaded by the defendant that the plot, subject matter of dispute, was situated in an area, which would not form part of any Khasra Number. Any land situated within the abadi of the village would not have any khasra number but land out side the abadi has to be recorded in some khasra number. When the parties go to a trial, it is the preponderance of the evidence, which clinches the issues. No doubt, initial burden of proving that the site, subject 4 CR No.5725 of 2010 matter of dispute, formed part of Khasra Nos. 3421, 3422 and 3423, was upon the plaintiff. Some evidence was, indeed, led by way of site plan, Ex.P-1, which was supported by PW-2, who, stated that the site in dispute was being used as graveyard even prior to 1924-25. The defendant led no evidence to prove that the plot in dispute did not form part of any khasra number. Be that as it may, even if it is assumed for the sake of argument that the plaintiff had led no evidence to clinch the issue and same could be clinched by appointing Local Commissioner or producing on record demarcation report by some revenue official, there was no question, in case of the kind, where application for additional evidence also should have been dismissed. Once, the Court was convinced, and it was so, indeed, that the issue in question could be fully and effectively determined by way of appointment of Local Commissioner or producing on record demarcation report as per the provisions of Order 26 Rule 9 of Code of Civil Procedure, it could even, suo motu, issue order of appointment of Local Commissioner. Provisions of Order 26 Rule 9 of Code of Civil Procedure are reproduced for ready reference:- "9. Commissions to make local investigations.- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules." 10. A bare look at the provisions of Order 26 Rule 9 of the Code, reproduced above, would demonstrate that powers of the Court to order appointment of Local Commissioner is not 5 CR No.5725 of 2010 dependent upon an application to be made by a party. If, therefore, the Court may be of the view that in a suit appointment of a local investigation is requisite or proper, it can surely exercise its powers in, suo motu, appointing a Local Commissioner. This view is supported by a Single Bench judgment of Hon'ble Allahabad High Court in Gajraj and Ors. v. Ramadhar and Others, AIR 1975 Allahabad 406. In the present case, there was available an application by a party seeking appointment of a Local Commissioner, even though by way of additional evidence under the provisions of Order 41 Rule 27 of Code of Civil Procedure, but the same, as mentioned above, has been dismissed on the ground that it was filed at a belated stage. The mere delay in filing the application can never be fatal. The Court has to impart justice to the parties and if the Court may require some evidence, such evidence can be even ordered to be brought by the Court under the provisions of Order 41 Rule 27 and in any case such a course should be adopted when a party makes an application for the said purpose. For delay, of course, as mentioned above, the other party can be duly compensated by way of costs. This Court is of the firm view that learned Appellate Court should have allowed the application filed under Order 41 Rule 27 of the Code of Civil Procedure so as to do complete justice between the parties” In the present case, dispute is regarding demarcation of disputed Khasra numbers owned by petitioner-plaintiff. Revenue officer has not been appointed in this case by the Court. Hence, the report of revenue officer after demarcation would facilitate the determination of the present controversy. However, so far as filing of application under Section 26 Rule 9 CPC at a belated stage is concerned, the other party can be compensated by way of cost. 6 CR No.5725 of 2010 In view of these facts, I am of the view that illegality and material irregularity has been committed by learned trial Court in declining the request of petitioner for appointment of a revenue officer as Local Commissioner for demarcation of the disputed Khasra numbers. Hence, in view of aforementioned facts, the present revision petition is accepted. Impugned order is set aside. Learned trial Court is directed to direct a revenue officer to demarcate Khasra numbers in dispute and submit the report as per rules. Learned trial Court is also directed to allow defendants to lead evidence in rebuttal to the additional evidence in the form of Local Commissioner now permitted to be led by petitioner-plaintiff. However, petitioner is burdened with cost of `5,000/-, which shall be a condition precedent. Disposed of accordingly. ( RAM CHAND GUPTA ) May 3, 2011. JUDGE 'om' 7