IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 588 of 2009. Decided on: 18.3.2010. __________________________________________________ Shri Moti Ram … Appellant. Versus Shri Tikam Ram … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Naveen K. Bhardwaj, Advocate. For the Respondent : Mr. Ajay Chandel, Advocate. ___________________________________________________________ V.K. Sharma, Judge (Oral). The appellant having been unsuccessful before both the Courts below is now before this Court by way of present regular second appeal. The suit filed by him as plaintiff against the respondent being the defendant for grant of decree for perpetual prohibitory injunction to the effect that the defendant be permanently restrained from laying the rope way over the suit land comprising of Khasra No. 268 of Khata No. 171, Khatauni No. 174, measuring 2-2-0 bighas, situate at Phati Tinder, Kothi Nohanda, Tehsil Banjar, District Kullu and from cutting the trees from the suit land or in any other manner whatsoever, was dismissed by the learned 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 trial Court mainly on the premises that the rope way in question had already been laid/constructed before filing of the suit and at that time, there was no objection to the same on his behalf. It was further held that the plaintiff failed to show that the rope way was in fact laid/constructed over the suit land. The above concurrent findings of fact have been challenged in the present appeal on the following substantial questions of law as framed at page 5 of the Paper Book: 1. Whether both the Courts below are failed in appreciating the revenue record i.e. copy of Akas Musabi Ext. P-2 placed on the record? 2. Whether both the Courts below have wrongly interpreted the provision of Order 26 Rule 9 CPC? In so far as the first question of law as framed, suffice it to say that it being connected with appreciation of Akas Musabi Ext. P-2, cannot at all be said to be a question of law, what to say of a substantial question of law. A perusal of Musabi Ext. P-2 goes to show that it is a certified copy of the original Musabi (field book). The document as it is, is required to be appreciated on its face value and it cannot be said that it would go to establish the case of the plaintiff that the rope way in question 3 passes over the suit land. For that, the plaintiff was required to lead independent evidence, which is absolutely lacking. The other question of law which according to the plaintiff is a substantial question of law is relating to interpretation of the provisions of Order 26, Rule 9 of the Code of Civil Procedure, 1908 (the Code). Admittedly, the prayer for appointment of Local Commissioner was made even before settlement of issues. It has been disposed of by the learned trial Court by a well reasoned order dated 6.11.2007. The purpose of commissions to make local investigations stipulated under Order 26, Rule 9 of the Code is for the purpose of elucidating any matter in dispute etc. etc. However, in the present case, the parties were yet to enter into evidence and the dispute till that stage was only by way of the pleadings set up on their behalf. Had they led any evidence and had there been any ambiguity therein, the same could very well be elucidated with the help of a Local Commissioner. In such situation, the evidence already on record could be appreciated properly by the Court with the help of the report of the Local Commissioner, but in the present case, there was no such evidence at the time when the 4 application for appointment of Local Commissioner was moved on 7.11.2007. For the foregoing reasons, the second question of law can also not be said to be a substantial question of law in the peculiar facts and circumstances of the present case. The above discussion brings me to hold that the appeal is without any merit and is accordingly liable to be dismissed. Ordered accordingly. The parties are left to bear their own costs throughout. The records of the learned Courts below be returned. (V.K. Sharma) Judge. March 18, 2010. (cr)