Civil Revision No. 5726 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 5726 of 2011 Date of decision : September 20, 2011 Sahi Ram ....Petitioner versus Satbir ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. RS Sangwan, Advocate, for the petitioner L.N. Mittal, J. (Oral) Defendant Sahi Ram has invoked the jurisdiction of this Court by filing the instant revision petition under Article 227 of the Constitution of India impugning order dated 29.7.2011, Annexure P/1 passed by learned Additional Civil Judge (Senior Division), Bhiwani thereby dismissing defendant's application for appointment of Local Commissioner. Suit has been filed by plaintiff-respondent against defendant- petitioner for permanent injunction alleging that plaintiff is in possession of the suit land measuring 32 bighas 10 biswas comprised of khasra no. 75. Defendant alleged himself to be in possession of the suit land as ghair mourusi. Civil Revision No. 5726 of 2011 -2- While suit was at the stage of evidence of defendant, he moved application for appointment of Local Commissioner alleging that he has installed tube-well in land of khasra no. 21/1 and has taken water from the said tube-well by laying down pipeline through land of khasra no. 59 and thereafter through the suit land comprised of khasra no. 75 for the purpose of irrigation of his agricultural land and to bring this fact on file, Local Commissioner is required to be appointed. Aforesaid application of defendant was opposed by plaintiff by filing reply. Learned trial court vide impugned order dismissed the defendant's application for appointment of Local Commissioner. Feeling aggrieved, the defendant has filed the instant revision petition. I have heard learned counsel for the petitioner and perused the case file. Learned counsel for the petitioner vehemently contended that appointment of Local Commissioner is necessary to determine the factum of pipeline existing through the suit land and appointment of Local Commissioner is not being sought for determining as to which party is in possession of the suit land. I have carefully considered the aforesaid contention but the same cannot be accepted in the facts and circumstances of the instant case. Learned counsel for the petitioner on instructions from counsel for the petitioner in the trial court admitted that plea regarding existence of pipeline through suit land has not been taken in the written statement. Civil Revision No. 5726 of 2011 -3- Consequently, in the absence of pleading Local Commissioner cannot be appointed to determine existence of pipeline through suit land. Counsel for the petitioner also contended that possession of defendant-petitioner over the suit land has been pleaded in the written statement and therefore, evidence regarding existence of pipeline through suit land was not required to be pleaded. The contention is misconceived and bereft of any merit. Factum of existence of pipeline through the suit land had to be pleaded as a fact and only then evidence could be led to prove the said fact. However, this fact has not been pleaded by defendant in the written statement as admitted by counsel for the petitioner. Consequently, Local Commissioner cannot be appointed to determine the alleged existence of pipeline through the suit land. For the reasons aforesaid, I find no merit in the instant revision petition which is accordingly dismissed in limine. ( L.N. Mittal ) September 20, 2011 Judge 'dalbir'