CR No.489 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.489 of 2009(O&M) Date of decision: 10.2.2009 Naurang Singh ......Petitioner Versus Ajit Singh and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. D.V. Sharma, Sr. Advocate with Ms. Shivani Sharma, Advocate for the petitioner. * * * Rakesh Kumar Garg, J. CM No.3095-CII of 2009 CM is allowed subject to all just exceptions. Documents attached with this application are taken on record. CR No.489 of 2009(O&M) The plaintiff has filed this revision petition challenging the order dated 22.10.2008 (Annexure P-6) whereby application for appointment of Local Commissioner to demarcate the property has been rejected by the Lower Appellate Court. The relevant facts are that the petitioner filed a suit for possession of abadi area, shown as A1, B, D, B1 attached with the plaint which was placed on record of the trial Court as Ex.PW-1/A, encroached upon by the defendants by way of raising construction etc. and for mandatory injunction directing the defendants to remove the obstructions made by them in the discharge/flow of daily use water and rainy water from the house of the plaintiff by raising wall, putting earth or any other obstruction made by the defendants as shown in the site plan attached with the plaint and for grant of injunction restraining the defendants for CR No.489 of 2009(O&M) 2 encroaching upon the area of the plaintiff and from creating any obstruction in the flow of water A written statement was filed by the defendants stating that the defendants had purchased the adjoining site vide registered sale deed dated 29.8.1985 from Rachan Singh son of Nand Singh. During the pendency of the suit before the trial Court, the petitioner made an application for appointment of Local Commissioner to visit the spot and report about the existing position with specific reference to the construction therein. The Local Commissioner visited the spot and submitted her report dated 22.8.2000 (Annexure P-4) along with the site plan. The report was also exhibited on record of the trial Court as Ex.PW3/B. The relevant part of this report is reproduced hereunder: “Points A,B,C,D is the house of plaintiff, and the dimensions of which are as under:- North:Common street South: Pucca road West: House of Jeet Singh East: Abadi plot of defendant/site in dispute. In front of constructed house of plaintiff there is an open courtyard of the plaintiff. The level of this courtyard is lower than the constructed house. The natural flow of this courtyard is towards East which is clear from the 3 drain holes at plinth level of courtyard in the wall B.C. at point D1, D2, D3. Some water was standing near these drain holes. Drain holes seems to be old. There are 3 ventilator in the Wall B.C which are shown as V1, V2, V3 in rough site plan. I also inspected the 1st Floor of the plaintiff’s house. The natural flow of water of 1st Floor is CR No.489 of 2009(O&M) 3 towards East through a spout (parnala). B.E.F.C is abadi plot of site in dispute. The level of BFHG was raised by putting earth about ¾ feet high. Defendants constructed a new house at point ‘M’ which is consisting of lintered 5 rooms, kitchen and bathroom. The house of defendants is unplastered. The level of G.H.F.E was lower than B.E.H.G about 2 ½. The level of this khasra No.225 is about 5’ lower than the abadi plot at E.H. and it is about 3' lower at HF. Memo of presence and rough site plan are attached with this report and be read as part of this report.” The suit of the petitioner was dismissed by the trial Court which was challenged by the petitioner by filing Civil Appeal No.176 dated 13.12.2006/5.12.2007. During the pendency of this appeal, the petitioner moved an application for appointment of Local Commissioner stating therein that a Local Commissioner be appointed to go to the spot and after fixing boundary of Khasra numbers which are in the eastern side of the abadi property which is subject matter of the sale deed. The area as mentioned in the sale deed dated 29.8.1985 should be measured and fixed and thereafter it should be reported whether or not the suit property as shown in the site plan Ex.PW1/A falls between the house of the plaintiff- appellant and the property of the defendant-respondents (allegedly purchased vide sale deed dated 29.8.1985). The said application has been rejected by the Lower Appellate Court vide impugned order dated 22.10.2008. While rejecting the aforesaid application for appointment of Local Commissioner filed by the petitioner, the Lower Appellate Court observed as under:- “It is apparent from the record of trial Court that report of CR No.489 of 2009(O&M) 4 Local Commissioner was proved on file in the statement of PW3 Ms. Manisha Sharma, Advocate who was appointed as Local Commissioner in some other case but regarding the suit property only. The said report has been exhibited as Ex.PW3/B and the report is comprehensive about the existing state of affairs at the spot. The purpose for which the second Local Commissioner is sought to be appointed is the same. Once the report of Local Commissioner is already there on the same point there is no ground to appoint Local Commissioner for the second time for the same purpose. The authorities cited by learned counsel for the appellant reported as Ram Lakhan and another v. District Judge and others 1993 Civil Court Cases 332 (Allahabad) and P. Dhana Kothwara Rao v. Guntha Ramesh Babu and others 1990 Civil Court Cases 808 (A.P.), are not applicable to the facts of the present case on the ground that in those authorities it was held that in case the report of first local commissioner is not proper or insufficient the second Local Commissioner can be appointed. However, there is no such situation in the present case and it is no where evidence that the report of first Local Commissioner was not valid. On the other hand the authorities relied upon by learned counsel for the respondents reported as Jala Swamydas and another v. Jadani Sumayun Raju 2006(1) Civil Court Cases 73 (A.P); Kushal Rao v. Shyam Rao and another 1997 (1) Civil Court Cases 192 (A.P.) and CR No.489 of 2009(O&M) 5 Durgam Mangamma v. P. Mohan and another 1991 Civil Court Cases 294 (A.P) are fully applicable to the facts of the present case as the report of first Local Commissioner is very much there and has not been set aside and in this eventuality second Local Commissioner cannot be appointed. Hence, the application filed by the appellant for appointment of second Local Commissioner is without any merits and the same is accordingly dismissed.” Challenging the aforesaid order dated 22.10.2008 passed by the Lower Appellate Court whereby the prayer of the petitioner for appointment of Local Commissioner has been rejected, learned counsel for the petitioner has vehemently argued that from the perusal of the impugned order, it is crystal clear that the same has been passed with non application of mind by the Lower Appellate Court as the earlier Local Commissioner was very much appointed in this very case by the trial Court whereas the Lower Appellate Court has observed that the Local Commissioner was appointed in some other case. According to the learned counsel for the petitioner, the Lower Appellate Court has also gone wrong while observing that the appointment of Local Commissioner is being sought for the same purpose for which the appointment was sought earlier. According to the learned counsel for the petitioner, the appointment of the second Local Commissioner before the Lower Appellate Court was not for the same purpose but for altogether different purpose i.e. to demarcate the property from Khasra No.225. Since the dimensions in the site plan attached by the plaintiff were not given therefore, the appointment of the Local Commissioner was essential in order to demarcate the property and the application was made with a view to CR No.489 of 2009(O&M) 6 demarcate the property which was purchased by the defendants by way of sale deed Ex.PX (Annexure P-7) attached with this petition. In the end, learned counsel for the petitioner has argued that in the interest of justice, the appointment of Local Commissioner should have been ordered to demarcate the property and has prayed for acceptance of this revision petition by way of setting aside the impugned order and further ordering of appointment of Local Commissioner for demarcation of the land from the side of the Khasra No.225. I have heard learned counsel for the petitioner. I find no merit in this case. Admittedly, the Local Commissioner was appointed by the trial Court on the application (Annexure P-3) of the petitioner in which it was prayed that during the pendency of the suit, the defendants have started raising construction in the suit property to change its position and it was necessary that the Local Commissioner be appointed with directions to visit the spot and report about the existing position with specific reference to the construction therein. On the basis of this application, the trial Court appointed the Local Commissioner who visited the spot on 19.8.2000 and submitted her report (Annexure P-4) dated 22.8.2000. There is nothing on record from which it can be made out whether the said report of the Local Commissioner has been taken into consideration while dismissing the suit of the plaintiff-respondents by the trial Court. The only contention raised by the learned counsel for the petitioner before the Lower Appellate Court for appointment of fresh Local Commissioner was that it is essential that a Local Commissioner be appointed in order to demarcate as it has been claimed by the respondents that the suit property is part of the property purchased by the defendants vide sale deed dated 29.8.1985. According to the learned counsel for the petitioner, the demarcation of the suit CR No.489 of 2009(O&M) 7 property is essential as it is the appellants who are the owners of the suit property and the respondents have encroached upon the same. It is not the case of the petitioner that the report of the First Local Commissioner was insufficient so that the second Local Commissioner could be appointed nor there is any such situation in the present case. The report of the first Local Commissioner is very much there and simply because that report does not support the case of the petitioner, the second Local Commissioner cannot be appointed. In fact from the arguments raised by the learned counsel for the petitioner it is clear that the petitioner wants to fill up the lacuna which had been left by him to prove his case and under the garb of this application for appointment of Local Commissioner, the petitioner wants to produce on record the additional evidence in his favour. In pith and substance, the prayer made in the second application for appointment of Local Commissioner is also for demarcation of the property in dispute. The only difference in this application is that the demarcation of the property in dispute should be made from a different side i.e. from the Western side of Khasra No.225. No doubt the Local Commissioner can be appointed to demarcate the property in dispute, but in the present case, the attempt of the petitioner is to prove his case at the appellate stage by filling up the lacuna left in his evidence under the garb of appointment of Local Commissioner. It is well settled that the Court will not be a party to collect the evidence in favour of any of the parties. Thus, I find no reason to interfere in the impugned order. Dismissed. February 10, 2009 (RAKESH KUMAR GARG) ps JUDGE CR No.489 of 2009(O&M) 8