IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 71 of 2011 Reserved on: 10.08.2011 Decided on: 24.08.2011 Amrik Singh …Petitioner. Versus Balak Ram Verma & others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. R.L. Sood, Senior Advocate, with Mr. Vishal Mohan and Mr. Arjun Lall, Advocates. For the respondents: Mr. Satyen Vaidya, Advocate, for respondent No. 1. Mr. Vivek Singh Thakur, Additional Advocate General, for respondent No. 2. Mr. Shrawan Dogra, Advocate, for respondent No. 3. Deepak Gupta, J. This petition under Article 227 of the Constitution of India is directed against the order dated 12.01.2011 passed by the learned District Judge, Shimla, whereby he allowed the application filed by the plaintiff and appointed a Local Commissioner to demarcate the land described in Khasra Nos. 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- 195, 197, 246/198 of the appellant-plaintiff and Khasra Nos. 252/247/198 of respondent No. 1 and report whether there is any passage to the land of plaintiff-appellant through khasra No. 252/247/198 of respondent No. 1. The Local Commissioner was also directed to report if there is any other approach or passage to the land of the plaintiff-appellant, Shri Balak Ram Verma. The Local Commissioner was further directed to report if there was any passage through khasra Nos. 249/247/198 and 251/247/198. Aggrieved by this order, the defendant has filed the present appeal. 2. The undisputed facts are that the plaintiff (respondent No. 1 herein) and defendant No. 1 (petitioner herein) are neighbours. They are the owners of adjacent properties. It is not disputed that previously both these properties were one property and owned by one person. The case of the plaintiff is that the only approach to his land from the municipal road was through khasra No. 252/247/198 and the same had been blocked by the defendant resulting in denial of any passage to him. The plaintiff claimed a right of passage through this khasra number by way of easement of necessity. 3. The defendant contested the suit and according to the defendant, there is no path passing through his land bearing khasra No. 252/247/198. According to the defendant, there were two alternative paths available to the plaintiff as was apparent from the order of the Settlement Collector dated -: 3 :- 25.02.1995. During the pendency of the suit, an application under Order 26 Rule 9 CPC for appointment of Local Commissioner was filed by the plaintiff at the stage when the application for grant of interim relief was pending. The learned trial Court rejected the application for grant of stay as well as the prayer for appointment of Local Commissioner. In an appeal filed by the plaintiff, the learned District Judge upheld the order of the learned trial Court rejecting the application for grant of stay, but allowed the application for appointment of Local Commissioner. The defendant filed Civil Revision No. 460 of 2002, which was allowed by this Court. However, it was made clear that during the trial, the plaintiff could lead evidence to prove his case and could also file a new application for appointment of a Local Commissioner. Thus, the plaintiff was not bared from filing a fresh application. 4. During the course of the trial, the plaintiff, in fact, did file another application for appointment of Local Commissioner, but this was also rejected by the learned trial Court and the suit of the plaintiff was dismissed holding that there was no easement of necessity in his favour. The plaintiff filed an appeal and during the course of the appeal, he again filed an application under Order 39 Rule 7 CPC read with Section 151 CPC and this application was allowed by the learned lower Appellate Court who appointed the Local Commissioner as detailed hereinabove. -: 4 :- 5. I am of the considered view that this was not a case where Local Commissioner could have been appointed. Admittedly, the defendant by now has raised construction over the area where the plaintiff claimed that a path existed. How can the Local Commissioner now determine whether a path existed on the said land earlier or not. Furthermore, the question whether a path existed or not was to be proved by leading evidence and not by appointment of Local Commissioner. 6. It has been strenuously urged by Mr. Vaidya that the order of the Settlement Collector was passed without issuing any notice to the plaintiff. A Local Commissioner cannot sit over the order of the Settlement Collector. No doubt, the Civil Court can decide whether this order is right or wrong, but a Local Commissioner cannot be appointed to sit over the order of the Settlement Collector. It has been repeatedly held by this Court that provisions of Order 26 Rule 9 CPC are not to be used to create evidence in favour of a party. A party has to prove its case by leading evidence. 7. In certain cases, such as boundary disputes, it may be essential to appoint a Local Commissioner because only a revenue expert can indicate whether construction has been raised on a particular khasra number or not. However, the existence of a path on a particular piece of land, when not recorded in the revenue record, must be proved by leading cogent and proper evidence. The plaintiff must stand on his own -: 5 :- feet. Even with regard to an alternative path being available, this is a matter which the Court must decide on the basis of the evidence led before it and a Local Commissioner cannot be appointed to decide the question whether there is an alternative path available or not. Otherwise every case can be decided by appointment of a Local Commissioner. 8. In view of the above discussion, the present petition is allowed and the order of the learned lower Appellate Court appointing the Local Commissioner is set aside. It is, however, made clear that this order shall not come in the way of the learned lower Appellate Court himself visiting the spot to ascertain the facts, if after hearing the arguments, he feels that it is necessary to visit the spot to decide the controversy between the parties. The parties through their counsel are directed to appear before the learned lower Appellate Court on 26th September, 2011. (Deepak Gupta) Judge August 24, 2011 (rajni)