Judgment:
N.K. Kapoor, J.
1. The petitioner has challenged the order of Subordinate Judge I Class, Rohtak whereby the court has ordered for appointment of local commissioner to determine the portion of the suit land which forms part of khasra number 11713/2468.
2. Briefly quoted, the plaintiffs filed a suit for permanent injunction restraining the defendants from interfering in their possession and also from alienating the same in any manner, claiming ownership thereof by way of adverse possession.
3. The defendants put in appearance and claimed themselves to be the owners of a part of the suit land. Admittedly, both the parties led evidence and even the arguments had been concluded on 17-9-1990. It is only on 22-9-1990 that an application under Order 18 Rule 17-A CPC seeking permission to lead evidence was filed by the defendants which has been decided vide the impugned order
4. As has been briefly noticed above, the plaintiffs claims to be the owners of suit land on the ground that they are in possession of the land openly, continuously and without any obstruction from anybody and so have protected their title.
5. The defendants, on the other hand, claimed themselves to be the owners of land comprised in khasra No. 1171 J/2468 measuring 1 bigha 10 biswas (pukhta).
6 This application was resisted by the plaintiffs on the ground that hearing in the suit had already concluded and in fact the case was posted for orders when this application had been filed by the defendants which otherwise also legally impermissible. In support of his contention, counsel relied upon judicial pronouncement of this court reported as Madan Mohan Aggarwal v. Mansa Devi, (1985-2) 88 P. L. R. 206. The trial Court while agreeing to the observations made by the court with the above cited judgment dismissed the application filed by the defendants for additional evidence but of its own, thought that matter in dispute could not be resolved without ascertaining as to the extent to which khasra No. 11713/2468 has been encroached upon by the plaintiffs. Thus, the court thought it desirable that the evidence led by the parties can be properly appraised in the light of report of the local commissioner.
7 The sole submission of the learned counsel for the petitioners is that the trial court despite having dismissed the application under order 18 Rule 17-A CPC yet granted the respondents the desired relief invoking its suo moto powers ostensibly terming the same to be in the interest of justice.
8. Counsel for the respondents, on the other hand, in support of the order has urged that on the facts and circumstances of the case, as noticed by the learned Sub Judge, the impugned order is perfectly just and proper. Counsel drew my attention to the observation of the court in Mahendranath Parida v. Purnananda Parida, A. I. R. 1988 Orissa 248, which are as under.
'Where the controversy between the parties is the area of the land or identification or location of an object or the land, local investigation is necessary, essential, requisite or proper. It will not be a sound exercise of discretion without anything more to decline to appoint a commissioner. Very often decision of a case turns on the identification or determination of the area and evidence in relation thereto from its peculiar nature can only be had on the spot.'
9. In Madan Mohan's case (supra), the court on perusal of the relevant material came to the conclusion that the additional evidence ought to have been adduced was in the nature of a roving enquiry as the plaintiff wanted to delve and lead evidence by producing officials from bank, municipal committee, neighbours where the shop was located and ether persons who could support the case of the plaintiff. Since these things were very well within the knowledge of the plain tiff, the 'court held that allowing the plaintiff to lead evidence of such a nature would merely be a roving enquiry and so would be beyond the scope of additional evidence as the party has to satisfy that he could n't adduce such evidence despite due diligence.
10. In the present case the facts are entirely different. Here the application for additional evidence was moved on 22 9-1990 when the arguments were already concluded on 17-9-1990. Through the said application, the defendants wanted appointment of revenue official as Local Commissioner. Discretions exercised cannot be termed as illegal. Thus, I find no merit in this revision-petition and consequently dismiss the same. .