1( 2026:HHC:12179 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.594 of 2025 Reserved on 30.3.2026 Date of Decision : 17.04.2026 Prem Nath ...Petitioner Versus Naresh Kumar Jain & anr. ...Respondents Coram: The Hon’ble Mr. Justice Romesh Verma. Judge. Whether approved for reporting?1 For the petitioner : Mr. Neeraj Gupta, Sr. Advocate with Mr. Ajeet Pal Singh Jaswal, Advocate. For the respondents : Mr. Rajesh Mandhotra, Advocate. Romesh Verma, Judge The present petition arises out of the order as passed by the learned Civil Judge, Court No.1 Dharamshala, District Kangra, H.P., whereby the application filed by the plaintiff/petitioner under Order XXVI Rule 9 read with Section 151 C.P.C for appointment of the Local Commissioner has been ordered to be dismissed. 2. The facts of the case are that the present petitioner/plaintiff has filed a suit in the Court of learned Civil Judge, Court No.1, Dharmshala, District Kangra, H.P. for permanent prohibitory injunction restraining the defendants, 1 Whether reporters of Local Papers may be allowed to see the judgment? 2( 2026:HHC:12179 ) their family members, friends and servants etc. from interfering, collecting material, raising any construction and changing the nature of the land comprised in Khata No. 353 min, Khatauni No. 767 min. , Khasra No. 722 area measuring 0-00-84 hectares of Up Mohal Lehsar, Mauza Yol, Tehsil, Dharamshala, District Kangra, H.P. in any manner with further prayer that mandatory injunction be passed in favour of the plaintiff, in case the defendants succeeded in raising the construction over the suit land during the pendency of the said suit. 3. It has been averred in the plaint that the plaintiff is co-owner in possession of the land bearing Khasra No. 723. It has further been averred that the respondents/ defendants are owners in possession of the land bearing Khasra No. 2028/687 and 2029/687 in Up Mohal Lehsar, Mauza Yol, Tehsil Dharamshala, District Kangra. In between the land of the plaintiff and the defendants, there exists a Kuhl over the land entered in Khata No. 353 min, Khatouni No. 767 min, Khasra No. 722, measuring 00-00-84 of Up Mohal Lehsar, Mauza Yol, Tehsil Dharamshala, District Kangra, H.P . The plaintiff and other residents of the area are using the Kuhl and there also exist a passage on the sides of the Kuhl. The defendants have 3( 2026:HHC:12179 ) got no right, title or interest over the suit land bearing Khasra No. 722. The defendants are threatening to trespass over the suit land and they are trying to invade the rights of plaintiff and other residents of the locality. Therefore, it was prayed that decree for permanent prohibitory injunction be passed against the defendants, their family members, friends, servants etc. from interfering, collecting material raising any construction changing the nature of the suit land bearing Khasra No. 722 with further prayer for mandatory injunction against the defendants. 4. The defendants/respondents filed the written statement and raised preliminary objections with regard to maintainability, locus standi, cause of action, limitation, non joinder of necessary parties, etc. It was averred in the written statement that the land of the plaintiff is situated on one side of the Kuhl i.e in Khasra No. 722 and the land of the defendants is on the other side. Further it has been stated that land bearing Khasra No. 722 is not owned and possessed by the plaintiff. The averments with respect to encroachment over Khasra No.722 were denied and it was stated that defendants sought a demarcation of the land bearing Khasra No. 2028/687 and 2029/687 from the revenue authorities and as per the 4( 2026:HHC:12179 ) demarcation of the land, the construction was found to have raised on the land owned and possessed by the defendants. Therefore, the defendants prayed for dismissal of the suit filed by the plaintiff. 5. The plaintiff filed a replication to the written statement and all the averments as made in the plaint were reiterated. 6. The case file reveals that on 20.05.2014, an application under Order XXVI Rule 9 read with Section 151 C.P.C for the appointment of the Local Commissioner was filed by the present petitioner/ plaintiff. The said application was duly contested by the defendants and the learned trial Court vide its Order dated 05.12.2014, dismissed the said application. 7. The issues were framed by the learned trial Court on 11.08.2016. 8. The plaintiff/petitioner again filed a fresh application for the appointment of the Local Commissioner under the provisions of Order XXVI Rule 9 read with Section 151 C.P.C on 10.05.2024. It was averred in the application that defendants/respondents have raised construction over the portion of the suit land bearing Khasra No. 722 despite being well aware of the injunction order passed by the Court and 5( 2026:HHC:12179 ) further encroached over the portion of the suit land/Kuhl during the pendency of the Civil Suit in complete violation of the injunction orders passed by the Court. Further it was averred that the defendants further got conducted unilateral demarcation of the land owned by him without arraying the plaintiff and other adjacent land owners, which is not in accordance with law. Therefore, it was prayed that the Local Commissioner be appointed and local investigation /demarcation be ordered to be carried out to ascertain the construction carried out and encroachment made by the defendants, if any. 9. The said application has been resisted by the respondents/defendants and it has been averred that the respondents did not raise any construction over Khasra No. 722 and in fact they have raised construction only on the land owned and possessed by them and not beyond their land and they did not encroach Khasra Number 722 in any manner. Further it has been stated that land has been demarcated as per the provisions of law by arraying of the stake holders. 10. The learned trial Court vide its impugned order dated 23.06.2025 dismissed the application under Order XXVI Rule 9 C.P.C as filed by the plaintiff/petitioner. 6( 2026:HHC:12179 ) 11. Feeling dissatisfied, the plaintiff/petitioner has approached this Court by assailing the impugned order. 12. It is contended by Sh. Neeraj Gupta, learned Sr. Advocate, assisted by Mr. Ajeet Pal Singh Jaswal, Advocate that the impugned order as passed by the learned trial Court is bad in the eyes of law and the same is not sustainable. He has further submitted that the provisions of Order XXVI Rule 9 C.P.C have not been interpreted by the learned trial Court legally and the Court below ought to have allowed the application for the demarcation of the suit land in order to resolve the issue once for all. 13. On the other hand, Sh. Rajesh Mandhotra, Advocate, learned counsel for the defendants/respondents has defended the impugned order and has submitted that the plaintiff/petitioner has approached the Court for grant of relief of injunction and mandatory injunction and in order to prove his case, it is for the plaintiff to establish the case of encroachment if any, by the defendants. He has further submitted that the learned trial Court had framed the issues in the matter on 11.08.2016 and issues with respect to relief of permanent prohibitory injunction and mandatory injunction, 7( 2026:HHC:12179 ) onus is upon the plaintiff and it is for him to establish his case beyond the reasonable doubt. 14. I have heard the learned counsel for the parties and have gone through the record of the case file carefully. 15. The primary dispute in the present case is with respect to appointment of the Local Commissioner. The plaintiff has filed a Civil Suit before the learned trial Court on the ground that he is owner in possession of Khasra No 723 and the defendants are owners in possession of Khasra No. 2028/687, and 2029/687 in Up Mohal Lehsar, Mauza Yol, Tehsil Dharamshala, District Kangra, H.P. 16. It is the case of the parties that between the land of the plaintiff and defendants, there exists a Kuhl over the land comprised in Khasra No. 722. It is contended by the plaintiff that the defendants are threatening to trespass the suit land bearing Khasra No. 722 and are trying to invade upon the rights of the plaintiff and other residents. 17. The plaintiff in order to prove his case has to lead evidence and in support of his contention, he has to establish that there is any kind of encroachment by the defendants over the suit land i.e Khasra No. 722. 8( 2026:HHC:12179 ) 18. The perusal of the case file reveals that (at page 57), DW 2 Sh. Roshan Lal, Revenue Officer in his cross examination in chief has stated that the Kuhl is shown in the ownership of the State of H.P. 19. As rightly pointed out by Sh. Rajesh Mandhotra, learned counsel for the defendants that Khasra No. 722 is owned by the State of H.P. and in the absence of the State, no relief in the present application can be granted to the plaintiff. Though the plaintiff has failed to establish any kind of encroachment for the determination of the application in question yet for the sake of arguments, in case there is any interference by the defendants, in that event, the affected party is State of H.P. The plaintiff is alleging interference and encroachment over Khasra No.722, being owned by the State, on behalf of the defendants, however, the plaintiff has failed to establish any right over the same. 20 It is a basic principle of law that a person, who alleges has to prove his case but allegations of interference and encroachment after the passing of the injunction order has been levelled and raised by the plaintiff, therefore, it is incumbent upon the plaintiff to substantiate his case by leading and placing on record material documents. The plaintiff cannot take 9( 2026:HHC:12179 ) an aid of the Court to collect evidence in order to corroborate his case. It has neither been pleaded nor proved by the plaintiff that any efforts were made by him to invoke the authority of the Revenue Department or that any steps were taken to demarcate the suit land. There is no due diligence on the part of the plaintiff and the Court will not come to the aid of the plaintiff in order to prove the alleged case. 21 The learned trial Court has rightly come to the conclusion that provisions of Order XXVI Rule 9 C.P.C cannot be invoked in order to collect the evidence to prove the alleged facts. The application for the Local Commissioner cannot be allowed in a routine manner and the same can be allowed only in those cases, which are bonafide for the determination of the controversy in question. Merely, on asking of the parties, the Local Commissioner cannot be appointed. It would be the provisions of Order XXVI Rule 9 C.P.C., read as follows: “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 10( 2026:HHC:12179 ) commission shall be issued, the Court shall be bound by such rules.” 22. The plaintiff/petitioner has to stand on his own legs by adducing independent and reliable evidence and he cannot invoke the provisions of Order XXVI Rule 9 C.P.C and call upon the Court to generate evidence for him. Therefore, in the opinion of this Court, there is no error in the impugned order passed by the learned trial Court . 23 Learned counsel for the respondents has relied upon the judgment in Diwakar Dutt Shastri vs. Ranjit Singh 1997 (1) SLJ 242, whereby it has been laid down that the Courts cannot be held to be Local Commissioner in a suit based on encroachment and the Court cannot grant evidence in favour of the party . It was observed as under: 4. It is too well-known that the Court is not expected to create evidence forany of the parties to the lis. It is for the plaintiff to prove that the defendant has encroached upon his land and this he can do so by leading evidence as is permissible under the Evidence Act. The learned trial Court has held that no case has been made out for the appointment of Local Commissioner to demarcate the suit land and in my considered view, the order does not suffer from any illegality, irregularity or error of jurisdiction. Even otherwise, the order would not amount to a case decided so as to call for interference under Section 115 of the 11( 2026:HHC:12179 ) Civil Procedure Code. I am supported in my view by a Division Bench judgment of Punjab and Haryana High Court reported in 1990(2) S.L.J. 636 (Pritam Singh and another vs. Sunder Lal and others). There is, thus, no merit in this revision petition and the same is hereby ordered to be dismissed. No costs.” 24 Similarly, it was held in CMPMO No. 208 of 2019, titled as Naseeb Deen and another versus Harnek Singh, decided on 19.7.2019 that the onus is upon the plaintiff to prove the encroachment and when there is no evidence that the plaintiff had approached the revenue authority for the demarcation of the suit land, it is not permissible to appoint the Local Commissioner to demarcate the suit land. 25 In the present case, there is also no material on record to demonstrate that the plaintiff at any stage has approached the revenue authority for demarcation of the land in issue. Therefore, filing of the application by the plaintiff but obvious is an attempt to create evidence in his favour and this important aspect of the matter has righty been taken into consideration by the learned trial court. 26. The said exposition of law has been reiterated in CMPMO No. 272 of 2019 titled as Ram Nath & another vs. 12( 2026:HHC:12179 ) Kuldeep Singh & others, decided on dated 25.06.2019. Relevant portion of the judgment reads as under: “14. Order 26, Rule 9 of the Code inter alia provides 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, the Court may issue a commission to such person as it thinks fit directing him to such investigation and to report thereon to the Court. 15. In my considered view, primarily whenever any order is passed, under Rule 9 of Order 26 of the Code, the satisfaction has to be of the Court as to whether local investigation for the purpose of elucidating any matter in dispute is necessary or not. This satisfaction cannot be of the plaintiffs or defendants. The plaintiff or the defendant has to stand on its own legs and provisions of Order 26, Rule 9 of the Code cannot be used to garner or gather evidence for them through the Court process. This is exactly what has been held by the learned Court below by way of the impugned order. Learned Court has held and rightly so that onus is upon the plaintiffs to prove their case and the Court cannot lend a helping hand and assist the plaintiffs to prove their case. These findings returned by the learned Court below cannot be said to be illegal as they are in consonance with the spirit of law with regard to the interpretation of Order 26, Rule 9 of the Civil Procedure Code. Plaintiffs cannot be permitted to a local commissioner appointed simply because they have not been able to lead cogent evidence to prove their case. That is not the intent of Order 26, rule 9 of the Code”. 13( 2026:HHC:12179 ) 27 From a perusal of the same, it is clear that Order XXVI Rule 9 CPC is not a panacea that can be used by litigants as a tool whenever they feel that they are not in a position to prove their case. 28. A similar view was taken in CMPMO No. 195 of 2024, dated 19.06.2024, wherein it was observed. “5. Having gone through the order passed by the learned Court below and having heard learned Senior Counsel for the petitioner/plaintiff as also learned Counsel for the respondent/defendant, this Court does not find any perversity in the impugned order. When it is a matter of record that the petitioner had sought amendment in the suit on the ground that during the pendency of the suit, certain part of the suit land stood encroached by the defendant, this pre-supposes that the petitioner was aware of his boundaries and only thereafter, he levelled allegations against the respondent of encroaching upon his land. In this background, but natural, the petitioner cannot be permitted to call upon the Court by way of appointment of a Local Commissioner to create evidence to prove his allegation as to whether part of the suit land mentioned in the application filed under Order 26, Rule 9 of the Code of Civil Procedure stood encroached upon by the defendant or not.” 14( 2026:HHC:12179 ) 19. In the present case, the plaintiff had come with a specific case that the defendants had encroached upon the suit land and had constructed a road on the same; therefore, the burden was upon the plaintiff to establish this fact and the learned Trial Court had rightly held that recourse cannot be had to the Local Commissioner to determine the nature and extent of the encroachment. The discretion to decline the appointment of a Local Commissioner was properly exercised and no interference is required with the same. 29 Therefore, to prove and establish the case, the burden is upon the plaintiff/petitioner and the learned trial court has rightly held that the recourse cannot be held to the Local Commissioner to determine the nature and extent of the encroachment. There is no jurisdictional error on the part of the learned trial Court, Therefore, the present petition being devoid of any merit deserves to be dismissed. 30. Ordered accordingly. Petition stands disposed of in the aforesaid terms. Pending application(s), if any, also stands disposed of. (Romesh Verma), Judge 17.04.2026 (veena)