C.R.No.1201 of 2011 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.1201 of 2011 Date of decision: 12.12.2011 Anil Kumar and another ..Petitioners Versus Haryana Urban Development Authority, Haryana ...Respondent CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr. Vaibhav Prashar, Advocate for the petitioners. Mr. Gitish Bhardwaj, Advocate for Respondent-HUDA Ajay Kumar Mittal,J. 1. The plaintiffs-petitioners are aggrieved by the order passed by the trial court dated 17.1.2011 whereby an application filed by them for appointment of Local Commissioner has been declined. 2. Brief facts as narrated in the petition may be noticed. Case of the petitioners is that they are in lawful possession of the property comprising in Khewat/Khatoni No.2674/3105, Khasra No.826 (10-7) to the extent of 20/207th share and Khewat/Khatoni No.2675/3106, Khasra No.827 (3-10) to the extent of 9/70th share situated in Palwal, Tehsil Palwal, District 1 C.R.No.1201 of 2011 Faridabad. They had purchased the said property vide registered sale deed dated 5.11.2007. The respondent acquired land adjacent the land of the petitioners comprising in Khasra No.357 and 825 and was making a passage from their land. Aggrieved thereby, the petitioners filed a suit for permanent injunction and mandatory injunction restraining the respondent from interfering in their possession over the suit land. In order to ascertain the position on the site, the respondent was directed to depute one of his officials to demarcate the suit property. The respondent deputed Patwari who submitted his report to the effect that there was no encroachment on the suit property. Thereafter, an application was moved by the petitioners for appointment of fresh Local Commissioner. The said application has been dismissed by the trial court vide order impugned herein. Hence this petition. 3. Learned counsel for the petitioners submitted that the property had been demarcated by the revenue official who was employed in the office of the respondent and in such a situation, the demarcation report submitted by him could not be relied upon. It was urged that in the interest of justice another Local Commissioner to demarcate the property in dispute as prayed by the plaintiffs-petitioners should have been allowed by the trial Court. Counsel for the respondent supported the order of the trial court. 4. After hearing learned counsel for the parties, I do not find any merit in the revision petition. 5. Order 26 Rule 9 of the Code of Civil Procedure deals with appointment of Local Commissioner. It reads thus:- “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 2 C.R.No.1201 of 2011 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.” 6. The aforesaid provision empowers the Court to appoint a Commissioner where it considers a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or for ascertaining any of those purposes enumerated therein. The Court while exercising discretion has to act judicially and cannot exercise arbitrary power. The object for appointment is to obtain evidence from the spot itself which helps the Court to properly and effectively evaluate the evidence on record. The report of the Local Commissioner is a piece of evidence and its weight has to be seen by the Court alongwith the other evidence on record. 7. The plaintiffs-petitioners are claiming their possession in respect of Khasra No.826 and 827 whereas the case of the respondent is relating to Khasra No.357 and 825. Once the plaintiffs-petitioners are in possession of the property in dispute, they can always get the said property demarcated from a competent person who is conversant with the technicalities of demarcation and produce him as a witness. 8. The suit before the trial court is at the stage of settlement of issues and decision on the stay application. The Estate Officer, HUDA, Faridabad vide order dated 25.2.2009 was directed for getting demarcation of the suit property through one of his official which was on joint request of both the parties and the report submitted by him is on the record. The value of the report shall be seen at the time of deciding the case as to how much 3 C.R.No.1201 of 2011 weight is to be accorded to the demarcation report submitted by the revenue official employed in the office of the respondent. 9. No ground for interference in the order dated 17.1.2011 passed by the trial court has been made out. 10. Finding no merit in the revision petition, the same is dismissed. December 12, 2011 (Ajay Kumar Mittal) ‘gs’ Judge 4