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Judgment
The present writ petition is directed against the order dated
03.02.2017, passed by the learned Civil Judge, Anoopgarh,
District Sriganganagar (hereinafter referred to as "Trial Court")
whereby the petitioners'' application dated 28.11.2016, seeking
appointment of the Commissioner has been rejected.
The facts in brief are that the petitioners-plaintiffs filed a suit
for specific performance of an agreement dated 17.05.1988, for
which they have pleaded that alongwith the execution of the said
agreement, they have taken possession of land and ''Dhani'' has
been constructed thereupon.
The defendants have refuted plaintiffs'' such contention, in
their writ statement.
The petitioners - plaintiffs moved an application dated
28.11.2016 under Section 75 of the Evidence Act read with Order
XXVI Rule 9 of the Code of Civil Procedure and sought
appointment of Civil Engineer to determine the period of the
construction of ''Dhani''.
The learned Trial Court has rejected the said application of
the petitioner vide order dated 03.02.2017, observing inter alia
that in the facts of the present case, the appointment of survey
Commissioner is not warranted.
Mr. Jain, learned counsel appearing for the petitioners
contended that the petitioners wanted to get Commissioner
appointed with a view to determine the appropriate time/date
when the ''Dhani'' was constructed and not for establishing their
possession. According to him, it is only a Civil Engineer, who can
show the age/period of the construction and the same cannot be
proved by leading oral or documentary evidence.
Heard learned counsel for the petitioners and perused the
material available on record.
After hearing learned counsel for the petitioners and upon
perusal of the record, this Court does not find any infirmity in the
order dated 03.02.2017.
It is settled proposition of law that the Court is not supported
to collect the evidence for a party and it is for a party to prove his
case.
The contention of Mr. Jain, that the age of the construction of
''Dhani'' can be determined by a Civil Engineer alone, for which the
appointment of Commissioner is necessary cannot be accepted in
the manner, attempted by the petitioners. There are sufficient
provisions in the Code of Civil Procedure for producing the
requisite evidence, including the evidence of an expert.
The learned Trial Court has exercised its discretion and found
it unnecessary to appoint Commissioner. There appears to be no
error or infirmity in the order impugned calling for interference by
this Court.
I find no force in the present writ petition and the same is
dismissed hereby.