IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.575 of 2024 Decided on: 05.05.2025 Balwant & others ….Petitioners Versus Vijay Ram & others ...Respondents Coram Hon’ble Mr. Justice Satyen Vaidya, Judge Whether approved for reporting? For the petitioners: Mr. Ashwani Kaundal, Advocate. For the respondents: Mr. Malay Kaushal and Mr. Anirudh Sharma, Advocates. Satyen Vaidya, Judge (Oral) By way of this petition, order dated 13th August, 2024, passed by learned Civil Judge, Jhandutta, District Bilaspur in CMA No.337-6 of 2024 filed in Civil Suit No.719-1 of 2021/2016 has been assailed, whereby the application of the petitioners herein under Order 26 Rule 9 of the Code of Civil Procedure (for short, “the Code”) for appointment of Local Commissioner has been rejected. 2. The suit has been filed by the respondents herein with respect to the land measuring 04.07-00 Bighas, comprised in Khasra Nos.224/220/73, 225/220/73, 226/220/73. 227/220/73, 228/220/73 Kita 5 Khewat Khatouni No.87/88 situated in village Kothi Pargana Gehrwin Teshil Jhandutta, District Bilaspur (for 2 short, “the suit land”). The respondents-plaintiffs are claiming right, title and interest over the suit land on the basis of having been given to them in exchange by the defendants. The plaintiffs are also claiming their exclusive possession over the suit land and on such premise, a decree for permanent prohibitory injunction has been claimed to restrain the defendants from interfering in the suit land in any manner. 3. The defendants, though, have admitted the factum of exchange, but have set a plea that the exchange has been only the paper transaction and in fact the possession of the suit land has never been delivered to the plaintiffs. In such manner, the defendants claim their possession over the suit land. 4. When the suit was at the stage of evidence of defendants, the aforesaid application for appointment of Local Commissioner came to be filed by the defendants. The defendants by way of local commission intend to prove their possession on the suit land. 5. Learned trial Court has rejected the prayer for appointment of Local Commissioner on the ground that the Court has not to create evidence for the parties and it is the defendants, who by standing on their own legs, have to prove the case set up by them. 3 6. Having heard both the sides as also on perusal of record, I am of the considered view that no illegality or perversity can be attributed to the impugned order in the given facts and circumstances of the case. 7. The core issue between the parties is with respect to possession over the suit land. Both sides are asserting their respective possession. Learned trial Court has been called upon to decide on such issue. The plaintiffs have already led the evidence and the defendants are in process of leading evidence. The factum of possession has to be proved by the respective parties and for such purpose, the agency of the Court cannot be used. The Court is not suppose to delegate its jurisdiction to a Local Commissioner. Learned trial Court has also rightly held that it was not the stage where the Court was to ascertain the factum of possession on the suit land prematurely. 8. Order 26 Rule 9 of the Code vests the Court with jurisdiction to have local investigation made if it is required for the purposes of elucidating any matter in dispute. As noticed above, the parties have not yet concluded their evidence and for such reasons it was not an appropriate stage for the Court to have taken a decision on the issue of possession over the suit land. 4 9. In result, I find no merit in the petition and the same is accordingly dismissed along with pending application(s), if any. ( Satyen Vaidya ) Judge May 05, 2025 (vt)