Heard Sri Rama Shanker Singh, learned counsel for the petitioner, Sri Anil Tiwari, Senior Advocate assisted by Sri Prabhkar Mishra, learned counsel for respondents.
Facts, as submitted by Sri Rama Shanker Singh, learned counsel for the petitioner, are that in the city of Lucknow there is a agricultural property recorded in the revenue record as Khasra No.222 area 0.569 hectare in village Tewaripur, Pargana Mahona, Tehsil Bakshi-Ka-Talab, District Lucknow, owned by one Smt.Satyana. On 27.5.1985, she executed sale-deed in favour of Ram Khelawan and Guddu in respect to the said property. Thereafter on 27.4.2001 Guddu transferred his half share through registered sale-deed in favour of M/s Shama Sahkari Awas Samiti Limited and on 9.6.2003 Sri Ram Khelawan transferred his half share in favour of petitioner's society/ New Meena Sahkari Awas Samiti Limited, accordingly, land was mutated by order dated 31.3.2005 passed by competent authority in favour of petitioner's society as well as M/s Shama Sahkari Awas Samiti Limited.
Sri Rama Shanker Singh, learned counsel for the petitioner further submits that said societies in pursuance of its aims and objects allotted various plots to its members. However, the petitioner's society did not allot a plot of land measuring 4400 sq. ft. over which one small room was constructed by the petitioner's society for its office use. As the defendants and their agents are trying to interfere in peaceful possession of the petitioner's society over the piece of land measuring 4400 sq. ft., at Khasra No.222, so on 18.7.2005 , so a Regular Suit No.487 of 2005 has been filed for restraining the respondents no.2 and 3 with the following main prayers:-
"क - यह कि जरिये स्थाई निषेधाज्ञा प्रतिवादिगण व उनके सहयोगियों, एटॉर्नी, एजेंटों आदि को निषेधित कर दिया जावे कि वह वाद पत्र की धारा-६ में वर्णित भूखंड पर जबरन कब्ज़ा न करें तथा वादी के कब्जे में किसी भी प्रकार का हस्तक्षेप न करे ।
ख- यह कि हर्जा व खर्चा वादी को प्रतिवादीगण से दिलाया जाय ।
"यह कि प्रतिवादी व उसके पति ने वादी की भूमि उपरोक्त में से जो कि कोटवा मार्ग के किनारे है तथा उसका क्षेत्रफल लगभग ४४०० वर्ग फुट है पर जबरन कब्ज़ा करने का प्रयास कर रहे है । जबकि समिति ने भूमि उपरोक्त के उक्त रोड साइड के प्लाट जिसका क्षेत्रफल लगभग ४४०० वर्गफुट है को समिति के कार्यालय हेतु सुरक्षित किया तथा उसकी बॉउंड्री वाल बनवाई है । इस भूखंड में पेड़ भी लगे है । इस भूखंड की चौहद्दी निम्न है -
पूरब - रास्ता (कोटवा मार्ग) पश्चिम-रास्ता समिति उत्तर-भूखंड संख्या २ दक्षिण- रास्ता"
On 26.10.2015 defendants filed written statement thereafter parties led their evidence. By order dated 15.11.2010 suit filed by the petitioners was dismissed, the same was challenged by filing Regular Civil Appeal NO. 170 of 2010 .
During the pendency of appeal before opposite party no.1/ Additional District Judge, Court no.2, Lucknow on 15.2.2012, petitioner moved an application under Order 26 Rule 9 CPC supported by an affidavit for appointment of commission to which an objection has been filed by respondents/ defendants.
By order dated 21.3.2012, opposite party no.1 / Additional District Judge, Lucknow rejected the same, challenged in the present writ petition.
Learned counsel for the petitioner while challenging the impugned order dated 21.3.2012 submits that opposite party no.1 while rejecting the petitioner's application for appointment of Advocate commissioner, failed to consider that there is no dispute in respect to fact that the petitioner's society has purchased half share of Khasra no.222 through registered deed on 9.6.2003 and defendants no. 2 and 3 have not claimed any right in respect to any portion of Khasra no.222 , but on the other hand , in their statement, they have said that they are the owner of plots of land of Khasra nos. 221 and 223 so in order to resolve the dispute and to ascertain whether the property in dispute is existing over Kharsra no.222 as claimed by the petitioner or over Khasra no. 221 and 223 as claimed by respondents/ defendants no. 2 and 3, so an application for appointment of commission has been moved to submit his report.
Learned counsel for the petitioner further submits that court below should have resort to Order 26 Rule 9 CPC on the basis of elucidating certain details in respect to situation of properties in regard to which relief has been claimed which can neither be taken from the records nor can be produced available on record on the basis of oral and documentary evidence led by the parties and taking into consideration the facts that the trial court while deciding the issue no.1 has held that whether the land in dispute is part of Khasra no.22 or not and the said burden lies on the plaintiff and for the said purpose , he should have moved an application for appointment of commission but no effort has been made by the plaintiff/ petitioner accordingly dismissed the suit. In this regard, he has relied on the following averments as made in the judgment given by trial court:-
"परन्तु वादी द्वारा ऐसा कोई प्रयास नहीं किया गया, जिससे परोक्ष रूप से यह तथ्य प्रगट होता है कि वादी भूमि की वास्तविक स्थिति को छिपाना चाहता है । वादी का यह दायित्व था कि वह भूमि का सर्वे कमीशन कराता । प्रमुख सम्पत्ति खसरा संख्या - २२२ तथा इसी का भूखंड जिसका वर्णन वादी ने पैरा - ६ में किया है दोनों की चौहद्दी की वास्तविक स्थिति को सामने लाने के लिए वादी का कर्तव्य था कि वह उपरोक्त भूमि का सर्वे कमीशन कराता, परन्तु वादी द्वारा ऐसा न किया जाना, उसके वाद के लिए आत्मघाती सिद्ध हुआ । विवादित सम्पत्ति की वास्तविक स्थिति स्पष्ट नहीं है |"
Thus, learned counsel for the petitioner submits that keeping in view the settled proposition of law the court cannot prevent a party from adducing the best evidence, if such evidence can be gathered with the help of a Commissioner . Refusal of the request of the party to appoint a Commissioner under Order 26 Rule 9 CPC to make a local investigation in an appropriate case amounts to failure of exercise of jurisdiction vested in it. In the instant matter , the relief which is sought in a suit for injunction to restrain the defendants from interfering with the possession due to alleged encroachment into a land of plaintiff, one of the methods to find out as to whether the said relief can be granted is to have local investigation done by a competent commissioner.
In support of his arguments , he has placed reliance on the following judgments :-
1.Shreepat Vs. Rajendra Prasad and others, 2000(2) JCLR 462 (SC)
2. Harayana Waqf Board Vs. Shanti Sarup and others , (2008)8 SCC 671.
3. Rajinder & Co. Vs. Union of India and others(2000)6 SCC 506.
4. Municipal Corporation, Ludhiana and another Vs. Balinder Bachan Singh ( dead) by Lrs. and others, (2004) 5 SCC 182.
5. Masih-Uz-Zaman Vs. Additional District Judge-Special Judge(S.C. & S.T. Act) passed in Writ Petition No.265(MS) of 2001.
Accordingly, it is submitted by learned counsel for the petitioner that impugned order dated 21.3.2012 (Annexure no.1) passed by opposite party no.1/ Additional District Judge, Court no.2, Lucknow liable to be set aside and a direction may be issued to issue a commission.
Sri Anil Kumar Tiwari, learned Senior Advocate for the respondents while defending the impugned order submits that in the garb of commission, petitioner/ plaintiff cannot be permitted to demarcate/ identify his land and in this regard burden lies on plaintiff to establish his case . Keeping in view the said facts there is no illegality or infirmity in the impugned order passed by the appellate court thereby rejecting the petitioner's application for issue of commission. In support of his arguments , he has placed reliance on the judgment given by Hon'ble the Apex Court in the case of Rangammal Vs. Kuppuswami and another (2011) 12 SCC 220, it has been held a under:-
" It has been further held by the Supreme Court in the case of State of J & K vs. Hindustan Forest Company,2006 (12) SCC 198, wherein it was held that the onus is on the plaintiff to positively establish its case on the basis of material available and it cannot rely on the weakness orabsence of defence to discharge onus.
It was still further held by this Court in the matter of Corporation of City of Bangalore vs. Zulekha Bi,2008 (11) SCC 306 (308) that it is for the plaintiff to prove his title to the property. This ratio can clearly be made applicable to the facts of this case for it is the plaintiff who claimed title to the property which was a subject-matter of the alleged sale deed of 24.2.1951 for which he had sought partition against his brother and, therefore, it was clearly the plaintiff who should have first of all established his case establishing title of the property to the joint family out of which he was claiming his share. When the plaintiff himself failed to discharge the burden to prove that the sale deed which he executed in favour of his own son and nephew by selling the property of a minor of whom he claimed to be legal guardian without permission of the court, it was clearly fit to be set aside by the High Court which the High Court as also the courts below have miserably failed to discharge.
The onus was clearly on the plaintiff to positively establish his case on the basis of material available and could not have been allowed by the High Court to rely on the weakness or absence of defence of the defendant/appellant herein to discharge such onus. The courts below thus have illegally and erroneously failed not to cast this burden on the plaintiff/respondent No.1 by clearly misconstruing the whole case and thus resulted into recording of findings which are wholly perverse and even against the admitted case of the parties."
In this regard, he further submits that the question for identification is a fact burden lies on plaintiff to prove his case on the basis of material available. He cannot rely on weakness or absence of defence of defendant to discharge the onus. In support of his arguments he has placed reliance on the judgments given by High Court of Gauhati in the case of Moti Kumari and others Vs. Md. Habibur Rahman in CRP No.82 of 2002 decided on 10.2.2003 in which it has been held as under:-
" A suit is decided on the basis of the pleadings and pleadings include the plaint as well as the written statement. Unless the pleadings raise a dispute with regard to the identity of the suit land, question of restoring to appointment of Survey Commission under Order 26 Rule 9 does not arise at all.
Mr. Roy Choudhury, learned counsel for the petitioners, has not been able to point out anything in the written statement to show that the identity of the suit land and/or of the suit premises was in dispute nor has Mr. Roy Choudhury been able to show that in the face of the pleadings of the parties in the plaint and/ or the written statement, appointment of Survey Commission for local investigation was necessary."
He has also placed reliance on the judgment given by High Court of Orissa In the case of Indramani Behera Vs. Ghanashyam Behera in Civil Revision No.512 of 1983 decided on 6.8.1986 in which it has been held as under:-
" This Court in two decisions reported in Harihar Mishra Vs. Narahari Setti Sitaramiah and another, AIR 1966 Ori 121 and Satyanarayan Naidu and another Vs. Sarbeswar Das I.L.R. 1966 Cutt. 412 held that the report of the Commissioner is only a piece of evidence which is not conclusive and parties can adduce evidence of experts engaged by them. Accepting the said principle , I am of the view that the court should not issue writs to commissioners where parties can themselves get the evidence on the points for which they seek a commissioner to be deputed."
Sri Anil Tiwari, learned Senior Advocate for respondents also argued that if there is lacuna in the pleadings on the part of plaintiff/ petitioner in respect to identification of land then for the said purpose he cannot be allowed to remove the said lacuna in the garb of issue of commission. In support of his arguments, he has placed reliance on the judgment given by High Court of Sikkim in the case of Tulamaya Chettri and another Vs. Yonarayan Pradhan and others, AIR 2004 Sikkim 39 wherein it has been held as under:-
"Order 26, Rule 9, CPC authorises the Court to appoint a commissioner if it considers a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or for other reasons mentioned therein. The matter is thus left to the discretion of the Court. The discretion is however a judicial one and not an arbitrary exercise of the power. The object of such appointment is to obtain evidence from the spot itself which helps the Court to properly understand and assess the evidence on record. The report submitted by the Commissioner is a piece of evidence which has to be considered along with other evidence on record. In MahendranatParida v. Purnananda Parida AIR 1988 Orissa 248, Justice R.C. Patnaik (as he then was) pithily observed as follows (Para 4) :--
"No doubt, the provision confers a discretion on the Court. But the discretion, as it is well known, has to be exercised in a judicious and sound manner but not whimsically and capriciously. What is necessary to note in the provision is the expression 'deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute............' Therefore, where the Court considers a local investigation to be requisite and proper, ordinarily it should not decline to exercise jurisdiction. It may decline jurisdiction if the motion is made at a belated stage, or if the motion is mala fide or in circumstances justifying refusal. A party has choice and a right to examine a survey knowing person after getting the identification or measurement privately done by him. For examining such witness it does not seek any privilege or indulgence."
Ordinarily we would not have interfered with an order appointing an amin commissioner but in the case at hand parties have closed their evidence and when the matter was at the stage of arguments the respondents came up with prayer for appointment of a commissioner. In view of the admitted fact that parties have already closed their evidence, acceding to the prayer for appointment of an amin commissioner at this belated stage would amount to permitting the respondents to fill up lacunae in their evidence thus leading to a roving inquiry. A learned single Judge of the Calcutta High Court in Satish Agarwal v. Tirath Singh has held that when the matter awaits arguments, the prayer made by the defendants for local investigation, if allowed would amount to filling up lacunae in their evidence and such prayer should not be allowed."
It has been further argued by Sri Anil Kumar Tiwari, learned Senior Advocate counsel for respondents that there is no illegality or infirmity in the judgment passed by the appellate court thereby rejecting the petitioner's application for issue of commission at the appellate stage. In support of his arguments, he has placed reliance on the judgment given by High Court of Punjab and Haryana in the case of Tota Ram Vs. Khtillu and others passed in Second Appeal No. 119 of 1978 decided on 17.7.1986 wherein it has been held as under:-
" After hearing the learned counsel for the appellant, I do not find any merit in this appeal. On an appreciation of the entire evidence, a firm finding has been given by both the courts below that the plaintiff had failed to connect the suit land with the land described as Ahata No.35, Ghar No.42 ( EX. P3) Surprisingly enough, no application was moved by the plaintiff before the trial court for appointment of the Local Commissioner. The application, if any, filed before the lower appellate court in this behalf was of no consequence. Thus, I do not find any illegality or infirmity with the concurrent findings of the courts below so as to be interfered with in Second Appeal. Consequently, the appeal fails and is dismissed with no order as to costs."
In the case of B.S. Nazir Hassan Khan Vs. Aswathanarayana Rao and others (Civil Revision Petition No.2143 of 2003) decided on 19.9.2003 by Karnataka High Court wherein it has held as under:-
"The present petition is directed against the order of the trial Court dated 9-6-2003 whereby I.A. XIII has been rejected. I.A.-XIII is effectively for appointment of a Commissioner and was filed on 2-11-2000. The reason why the I.A. has been rejected Js on the ground that it is hopelessly belated and that it is filed at a stage of the proceedings when such an I.A. could not have been entertained by the Court in law.
The learned Judge has pointed out in the order passed that the suit is of the year 1991. The evidence of the plaintiff was commenced on 4-11-1996 and the evidence was closed on 22-2-1999. In the course of these three years, if the plaintiff and the learned Advocate desired that any Commissioner was necessary or desirable, it was at this point of time that the application ought to have been made and most certainly before the plaintiffs evidence was closed. If the application was justified, the court would have granted it or else it could have been rejected. Thereafter, the defendant's evidence was taken up and this was also closed on 19-9-2000 and the order-sheet shows that the case was posted to 10-10-2000 for arguments. The present application has been filed on 2-11-2000 i.e., three weeks after the trial has reached the stage of finality and the case was fixed for arguments. To my mind, it is necessary that all applications of this type even if they are bona fide and genuine, have to be filed at a proper point of time in the proceedings. This is very necessary also from the point of view of the stage of the proceedings because, the learned trial Judge is perfectly right when he pointed out that if this application were to be entertained, even assuming that was the position, it would mean that the trial which has reached the argument stage, would get dilated, evidence will have to be reopened and all the procedures from that stage onwards would again have to be recommenced. The law does not permit such ill-timed applications which would only have the effect of disrupting the trial and dilating the proceedings. The Courts have been virtually struggling to ensure that civil proceedings are heard and disposed of within a reasonable time and applications of this type only disrupt the proceedings and dilate them. Under these circumstances, not only was the trial Court fully justified but, to my mind, the challenge presented through the Civil Revision Petition to that order is totally misconceived. Having regard to this position, the Civil Revision Petition is dismissed with costs quantified at Rs. 1,000/-."
And on the judgment given by High Court of Andra Pradesh at Hyderabad in the case of M. Subbarayudu and others Vs. Rajamma ( Second Appeal No.592 of 1994) decided on 23.1.2003 , the relevant portion is quoted as under:-
"Though the appellate Court had framed the point for consideration as to whether the grant of declaration and injunction in favour of the respondent plaintiff by the Trial Court is sustainable, the appellate Court had discussed in paras 8 to 28 in detail both oral and documentary evidence and had affirmed the findings of the Trial Court. A clear finding had been recorded at para 14 that there is no dispute regarding the title deeds Exs.A1 and B1 and in fact, it had recorded the findings relating to respective title deeds. It is no doubt true that when interlocutory orders are made, not every order need be questioned and definitely by virtue of sub-section 105 of the Code such interlocutory orders also can be questioned in the appeal by raising specific grounds. Sub-section (1) of Section 105 of the Code says that save as otherwise expressly provided no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction but where a decree is appealed from any error, defect or irregularity in any order affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal. Hence to attract Sub-section (1) of Section 105 of the Code (1) there must be an error, defect or irregularity in any order. (2) such order should affect the decision of the case and (3) in such case it may be set forth as a ground of objection in the memorandum of appeal. The grounds set forth in the present appeal relating to dismissal of applications for appointment of Commissioner and also for reception of additional evidence have been set forth, as grounds in the present second appeal but however in view of the convincing reasons recorded by the appellate Court it cannot be said that the ingredients of Sub-section (1) are attracted in the present case. Section 105 of the Code dealing with the powers of appellate Court reads as hereunder:
"107. Powers of Appellate Court :--
(1) Subject to such conditions and limitations as may be prescribed an Appellate Court shall have power--
(a) to determine a case finally
(b) to remand a case
(c) to frame issues and refer them for trial
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.
It is pertinent to note that Sub-section (2) of Section 107of the Code specifies that the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. In view of the language employed in Sub-section (2) of Section 107 of the Code there cannot be any doubt that the appellate Court also has power to appoint an advocate-Commissioner under Order 26, Rule 9 of the Code. However, in view of I the reasons recorded, the appellate Court is I well justified in declining to appoint an advocate-Commissioner in the light of the facts and circumstances of the case. However, the application IA No. 229 of 1990 filed for reception of additional evidence is also for reception of rough sketch and another application IA 328 of 1990 was filed under Order 26 Rule 9 CPC. The appellate Court had dismissed both the applications recording convincing reasons at para 13 of the judgment. Even otherwise though the appellate Court has power to appoint an advocate-Commissioner in exercise of powers under Section 107 of the Code in view of the convincing reasons, which had been recorded by the appellate Court in negativing the relief of appointment of Commissioner on the ground that it is a belated application, the said finding recorded by the appellate Court cannot be faulted in any way. As far as the reception of additional evidence is concerned, in the light of the existence of title deeds and the interpretation thereof in Exs. A1 and B.1 the rough sketch prepared by the appellants may not be of any consequence and the same may not throw much light to decide the respective rights of the parties and hence in view of the reasons recorded by the appellate Court, the dismissal of the said application also cannot be said to be unjustified."
Accordingly, it is submitted by learned counsel for the respondents that there is no illegality or infirmity in the impugned order, so the writ petition is liable to be dismissed.
I have heard learned counsel for the parties and gone through the record.
Section 75 C.P.C. lays down that, "subject to such conditions and limitations as may be prescribed, the Court may issue a commission :
(a) to examine any person
(b) to make a local investigation
(c) to examine or adjust accounts or
(d) to make a partition.
And the provisions of Order 26 Rule 9 of the CPC reads below:-
" 9.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 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."
A perusal of the aforesaid quoted provisions of Order 26 Rule 9 of CPC makes it abundantly clear that an order of issuing Commission for the purposes of elucidating can be passed only and only in case it is deemed to be requisite or proper by the learned court concerned. The opening words in Rule 9 are "in any suit in which the court deems a local investigation to be requisite or proper".
Thus, for exercise of powers/jurisdiction for issuing Commission for the purposes of elucidating any matter in dispute, the sine qua non is the satisfaction of the Court that it is requisite or proper to issue the Commission for the said purpose.
Further, Order 26 Rule 9 of Code of Civil Procedure envisages that 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 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.
From the texture of the languages coined in Order 26 Rule 9 C.P.C., it is explicit that it does not make any distinction between the plaintiff and the defendant or it does not have any reference to show that a particular party viz., either the plaintiff or the defendant alone shall file an application under Order 26 Rule 9 CPC, with a prayer to appoint a Commissioner. What it transpires is, where the Court deems a local investigation to be requisite or proper in any suit for the purpose of elucidating any matter, 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.
And the expression 'elucidate' means to make lucid or clear, throw light upon, explain, enlighten. Where the Court is satisfied on the materials available on the record that a party is not able to produce the desired evidence for reasonable circumstances, it may assist the party to appoint a 'Commissioner' to get the evidence. However, such evidence is not binding on the Court, which is to appreciate the same along with other evidence. The party can 'countermand' the evidence of Commissioner's report by giving any other evidence. As the object of Order 26 Rule 9 CPC, is not to assist a party to collect evidence where it can get the evidence itself, but the real object is for elucidating any matter in dispute by local investigation at the spot. In the case of Debendranath Nandi v. Natha Bhuiyan, reported in AIR 1973 Ori 240, it is held that the object of local investigation under rule is to obtain evidence which from it's peculiar nature can best be had from the spot.
In Payani Achuthan v. Chamballikundu Harijan Fisheries Development Cooperative Society, reported in AIR 1996 Ker 276, it has been held that the Court cannot prevent a party from adducing the best evidence, if such evidence can be gathered with the help of a Commissioner. Refusal of the request of the party to appoint a Commissioner under Order 26 Rule 9 C.P.C., to make a local investigation in an appropriate case amounts to failure of exercise of jurisdiction vested in it.
In a suit for injunction to restrain the defendants from interfering with the possession due to alleged encroachment into the land of the plaintiff, one of the methods to find out as to whether or not there is encroachment is to have the local investigation done by a competent Commissioner.
A Commissioner for local investigation is deputed under Order 26 Rule 9 CPC when the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute or for ascertaining any other matter mentioned in the said rule. The object of local investigation under the above provision is to obtain evidence which from its peculiar nature can best be had from the spot itself. Such evidence enables the Court to properly and correctly understand and assess the evidence on record already recorded. It clarifies or explains any point which is left doubtful on the evidence on record.
In the instant matter, suit for permanent injunction has been filed with the prayer that defendants/respondent nos.2 and 3 may be restrained from forcefully interfering and dispossessing the plaintiff/ petitioner from the property as mentioned in paragraph 6 of the plaint. Thereafter in order to elucidate the relief prayer, local investigation has been made by the plaintiff/petitioner. However, the appellate court, vide order dated 21.3.2012, while deciding the petitioner's application for issue of commission held as under:-
"अधीनस्थ न्यायालय में वादी ने पैरा २ भूमि खसरा सं. २२२ की चौहद्दी दी है, जिसमें पूरब गाटा सं. २२१ दिखाया गया है और उत्तर गाटा सं. २२२ का शेष भाग पश्चिम सरहद कमलाबाद बढ़ौली तथा दक्षिण गाटा सं. २२१ व सरहद ग्राम कमलाबाद बढ़ौली दिखाई गई है । वादी ने यह भी कहा है कि वह २२२ के आधे भाग का मालिक है और यह चौहद्दी उसी १/२ भाग पर दिखाई गई है । पैरा ६ वाद- पत्र में इस जमीन की चौहद्दी में पूरब रास्ता कोटवा मार्ग दिखाया गया है जबकि वाद- पत्र के पैरा २ में पूरब गाटा सं. २२१ दिखाया गया है तब वाद में रास्ता कोटवा मार्ग कहाँ आता है, स्पष्ट नहीं । बैनामा में चौहद्दी दी जाती है । नक्शा बैनामा की चौहद्दी के आधार पर स्थिति का मूलयांकन किया जा सकता है |"
Accordingly, rejected the same on the ground that at the stage of arguments there is no necessity for issue of Amin Commissioner. Thus, keeping in view the law on the point in issue, as stated herein above, and the rival averments made by the parties as well as the evidence on record, a Commissioner's report of local investigation was absolutely necessary in this case. The appellate Court, therefore, was not justified in rejecting the prayer of the petitioner/ plaintiff for issue of commission. As in the case of Ponnusamy v. Salem Vaiyappamalai Jangamar Sangam, AIR 1986 Mad 33, it is observed as follows : -
"The object of the local investigation under Order 26 Rule 9 is to collect evidence at the instance of the party who relies on the same and which evidence cannot be taken in Court but could be taken only from its peculiar nature on the spot. This evidence will elucidate a point which may otherwise be left in doubt or ambiguity on record. The Commissioner in effect is a projection of the Court appointed for a particular purpose. In this regard the implication of Order 26, Rule 10 cannot be lost sight of when it says that the report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record. A party has a right to place evidence which he could require to substantiate his case before the Court and it is the duty of the Court to receive such evidence unless there are other justifiable factors in law to decline to receive it. This right of the party to adduce evidence gets adjudicated in the interlocutory proceedings under Order 26 Rule 9, When the Court declines to issue the Commission asked for to make local investigation that order certainly disposes of the right claimed by the party to place the requisite evidence on his behalf. Therefore, an order refusing to appoint a Commissioner under Order 26 Rule 9 to make local investigation and report is a "case decided" and hence revisable under Section ".
And in the case of Shreepat vs. Rajendra Prasad & Ors. 2000 (2) JCLR 462 (SC), Hon'ble the Apex Court held as under :-
"In our opinion, this contention is correct. Since there was a serious dispute with regard to the area and boundaries of the land in question, especially with regard to its identity, the courts below, before decreeing the suit should have got the identity established by issuing a survey commission to locate the plot in dispute and find out whether it formed part of Khasra No. 257/3 or Khasra No 257/1. This having not been done has resulted ' in serious miscarriage of justice. We consequently allow the appeal, set side' the order passed by the courts below as affirmed by the High Court and remand the case to the trial court to dispose of the suit afresh in the light of the observations made above and in accordance with law".
In the case of Haryana Waqf Board vs. Shanti Sarup and others (2008) 8 SCC 761, Hon'ble the Supreme Court held as under :-
"It is also not in dispute that even before the appellate court, the appellant Board had filed an application for appointment of a Local Commissioner for demarcation of the suit land. In our view, this aspect of the matter was not at all gone into by the High Court while dismissing the second appeal summarily. The High Court ought to have considered whether in view of the nature of dispute and in the facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land."
Accordingly, the Court cannot prevent a party from adducing the best evidence, if such evidence can be gathered with the help of a Commissioner. Refusal of the request of the party to appoint a Commissioner under Order 26 Rule 9 CPC to make a local investigation in an appropriate case amounts to failure of exercise of jurisdiction vested in it. In this view of the matter, I find that the impugned order cannot be sustained and the action on the part of appellate court, rejecting the prayer of the petitioner/ plaintiff for issue of commission most probably will produce error or defect in the decision of the case on merits. Therefore, the impugned order dated 23.2.2012 passed by opposite party no.1/ Additional District Judge, Court no.2 Lucknow liable to be set aside.
For the foregoing reason, the writ petition is allowed. The impugned order dated 21.3.2012 ( Annexure no.1) passed by opposite party no.1/ Additional District Judge, Court no.2, Lucknow is set aside and the appellate authority/ opposite party no.1 is directed to appoint commissioner in the matter in issue and after obtaining his report, dispose of the appeal expeditiously.
No order as to cost.
Dated: 08.04.2016 D.K.