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Judgment
Surinder Singh, Judge
The respondents stand served. Despite service, they are not present. The matter can be disposed of, at this stage. Heard.
This is a petition under Article 227 of the Constitution of India against the order passed by the learned trial Court on an application moved under Order 26 Rule 10-A read with Section 151 of the Code of Civil Procedure, seeking the appointment of Local Commissioner to crystalize the shares of the parties in the suit land.
The petitioners/plaintiffs had filed a suit seeking declaration to the effect that the land measuring 5 kanals 7 marlas bearing khewat No. 1332, Khatouni No. 1580, Khasra No. 1452/2 as entered in the jamabandi for the year 1982-83 situated in Village Saloh, Tehsil and District Una is owned and possessed by the plaintiffs/petitioners to the extent of 158/192 shares and defendant/respondent No. 1 to the extent of 34/192 shares. The entries contrary to it in revenue record are wrong, illegal, null and void and ineffective as against the rights of the plaintiffs/petitioners and that the respondents-defendants have no right to seek partition on such entries, with the consequential relief of injunction.
By moving application under Order 26 Rule 10-A read with Section 151 of the CPC by the petitioners herein, sought assistance of Sadar Kanungo by appointing him as Local Commissioner to prepare and produce the excerpt keeping the all entries in view w.e.f. 1977-78 upto date, so that the position of the shares may be crystallized, but the request was declined on the ground that the plaintiffs have a remedy u/s 171 of H.P. Land Revenue Act to seek partition of the land.
As a matter of fact, to prove the incorrectness of share, the onus lies on the plaintiffs/petitioners. The duty of the Court is not to collect the evidence for a party and in this case the onus is on the plaintiffs/petitioners. For that, they may examine any revenue officer of the estate where the suit property is located as their witness with the aid of the revenue record to substantiate the point taken with respect to the incorrectness of the shares at the time of leading evidence.
The learned Counsel for the petitioners states, at Bar, that the suit is now fixed for the evidence of the plaintiffs. Therefore, they are at liberty to seek the assistance of a revenue officer to prove their case with the aid of revenue record to discharge the onus. However, the present application under Order 26 Rule 10-A of the CPC for collecting the evidence by appointment of the Local Commissioner was rightly declined as there is neither error of jurisdiction nor any apparent illegality. Thus, no interference by this Court by way of indulgence under Article 227 of the Constitution of India is called for. The petition stands disposed of, so also the pending application(s), if any.