IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 190 of 2011 Date of decision: 25.08.2011 Hem Raj and others ... Petitioners Versus Suneel Kumar and another … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the petitioners: Mr. Naresh Verma, Advocate. For the respondents: Mr. Gurdev Singh Thakur, Advocate. V.K. Ahuja, J. (Oral): CMP No. 1000 of 2011: The application is allowed and the documents as prayed, are taken on record. The application stands disposed of. CMPMO No. 190 of 2011: The present petition has been filed by the petitioner under Article 227 of the Constitution of India against the order passed by the learned Civil Judge (Senior Division), Court No. II, Mandi, dated 16.5.2011, rejecting the application filed by the plaintiff/petitioner for appointment of the Local Commissioner. 2. I have heard the learned counsel for the parties and have gone through the certified copies of the documents placed on record. 1Whether reporters of Local Papers may be allowed to see the judgment? 2 3. A perusal of the prayer made by the petitioner shows that since he had applied for demarcation and the Field Kanungo had refused to give report, since disputed land abutted the Government land. It is for the plaintiff to prove the encroachment, if any, made by the other party by taking proper demarcation report and prove it during the course of hearing before the learned trial Court. The said report had been submitted by the Field Kanungo that since the land abuts the Government land and he was not competent to demarcate the land. According to Rule 10.10 of the Himachal Pradesh Land Records Manual, Revenue Officer not below the rank of Assistant Collector 1st Grade shall demarcate the boundaries of government lands with private lands. Therefore, in these circumstances when the Kanungo refused to give report, it was for the plaintiff to approach the Assistant Collector 1st Grade by filing appropriate application for demarcation of the land. The remedy available to the plaintiff was to apply to the Assistant Collector 1st Grade and not under Order 26 Rule 9 C.P.C. 4. The provisions under Order 26 Rule 9 C.P.C. can be invoked by the Court if the Court is of the opinion that it is not able to decide the question in regard to encroachment on the basis of the evidence led by the parties. The Court is not for creating evidence for any of the parties and it is for the plaintiff to prove his case and accordingly, the impugned order does not suffer from any illegality. The case was fixed before the learned trial Court for arguments and now the present application has been filed for appointment of the Local Commissioner. The plaintiff can make a prayer before the learned trial Court, so as to enable him to file an application for demarcation before the Assistant Collector 1st Grade and seek time from the Court to seek 3 demarcation and produce the said report within a reasonable time. The learned trial Court shall consider the prayer as and when made by the plaintiff and shall pass appropriate order accordingly and reasonable time say about three months, may be given by the learned trial Court to seek demarcation report from the Assistant Collector 1st Grade and prove the same according to law. 5. With these observations, the petition is dismissed, so also the pending miscellaneous application(s), as there is no illegality in the order passed by the learned trial Court rejecting the application at this stage. A copy of the order be sent to the learned trial Court for information and compliance. Interim order stands vacated. Copy Dasti. ( V.K. Ahuja ), August 25, 2011 Judge (BSS)