HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. : 23 of 2009 Decided on: 26.5.2011 Dhaju Ram and others ……… Petitioners. Versus Surat Singh and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the petitioners: Ms.Jyotsna Rewal Dua, Advocate. For the respondents: Mr.G.D. Verma, Senior Advocate, with Mr.Romesh Verma, Advocate. V.K. Ahuja, J.(Oral): The present petition has been filed by the petitioners, who are the defendants before the learned trial Court, against the order passed by the learned Civil Judge (Senior Division), Court No.I, Paonta Sahib, in an application filed by the respondent/plaintiffs under order 26 Rule 9 of the CPC, vide which the application was allowed by the learned trial Court. 2. A notice of the petition was issued to the respondents. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. A perusal of the record shows that earlier also a suit for permanent injunction was filed in regard to this very disputed land comprised in Khasra No.5505/849. In that case also, there are specific findings under Issue No.5 that in between the land of the plaintiffs and the defendants, there existed a road. The present suit for possession has been filed by the plaintiffs claiming that some portion of the land owned by them is above the road and some portion is below the road. The plaintiffs had obtained the demarcation report in regard to the disputed Khasra number and filed the suit for possession on the basis of the said demarcation report Ext.DW-2/A. Once a plaintiff files a suit for possession of - 2 - the land, before filing the suit it is required by him to obtain demarcation of his land, ascertain the land for which possession is being claimed and then he is required to file the suit for possession. The same was done by the plaintiffs before filing of the suit and the said report has been proved before the learned trial Court also during the trial of the case. It is not for the court to create evidence for the plaintiffs by allowing the application under Order 26 Rule 9 CPC. The question of appointment of Local Commissioner will arise once there was a dispute in regard to the land and there is no report of the Revenue Officer before the learned trial Court and the demarcation, in such circumstances, may be necessary in the facts of the case. 5. The learned counsel for the respondents had relied upon the decision in Bali Ram vs. Mela Ram and another, AIR 2003 Himachal Pradesh 87, wherein a learned Single Judge of this Court has observed as under: “Though the object of the local investigation is not to collect 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.” 6. The said judgment was based upon the facts of that case and it is clear that in appropriate circumstances, the court can itself appoint a Local Commissioner suo motu if the facts and circumstances of the case justify the - 3 - appointment of the Local Commissioner. In the present case, it was very much clear to the plaintiffs before they filed the suit that there are findings as against him and the land had already been demarcated and the findings under issue No.5 were already there as against them. The present suit was filed after the plaintiffs had obtained the demarcation report and it is for him to prove that the land for which the suit for possession has been filed belonging to him and it is not for the court to create evidence for him by allowing the application under Order 26 Rule 9 CPC. 7. Therefore, there is no merit in the petition filed by the petitioner and the impugned order passed by the learned court below is set aside. However, it is clarified that the observations made in regard to the previous judgment or the facts of the case will have no bearing whatsoever on the merits of the case and the learned trial Court shall independently consider the evidence, oral as well as documentary, and will give his findings accordingly. The parties through their counsel are directed to appear before the learned trial Court on 20.6.2011. The Registry is directed to send a copy of this judgment alongwith the records of the case so as to reach the learned trial Court well before the date fixed. 8. The petition stands disposed of accordingly, so also the pending application(s), if any. May 26, 2011. (V.K. Ahuja), (tilak) Judge