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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.