R.M. SAVANT, J.

1. Rule. With the consent of the Learned Counsel for the parties made returnable forthwith and heard.

2. The short question which arises in the above Petition is whether a Court Commissioner is required to be appointed in the Suit in question.

3. The Petitioner herein is the original Plaintiff who has filed the Suit in question being Regular Civil Suit No. 222 of 2012 for an injunction restraining the Defendant Nos. 1 to 5 from disturbing the Plaintiff's possession and further for restraining the Defendants from cutting the 100 years old trees belonging to the Plaintiffs without permission as also injuncting the Defendant Nos. 1 to 5 from erasing the boundary marks between Gat Nos. 1464 and 1465 which are two lands in contention in the said Suit. The Plaintiff is concerned with land bearing Gat No. 1465 and whereas the Defendants are concerned with land bearing Gat No. 1464. The said lands adjoin to each other in as much as to the south of Gat No. 1465 is the land bearing Gat No. 1464 and therefore the Defendants land bearing Gat No. 1465 is to the North of Gat No. 1464. In the said Suit, an application for temporary injunction came to be filed by the Plaintiff and the temporary injunction sought was on the same lines as the perpetual injunction which was sought in the Suit namely that the Defendants should be restrained from cutting the 100 year old trees which are of the Plaintiff, without permission. In support of the respective assertions the parties had produced 7/12 extracts of the said Gat numbers as also two measurement maps which were prepared at the behest of the parties i.e. the Plaintiff and the Defendants. In so far as the Plaintiff is concerned, he produced the measurement map dated 26/27th May 2001 whereas the Defendants produced the measurement map dated 25th March 2009. However, in the said measurement maps, the trees which the Plaintiff claims are over 100 years old and are on his land, have not been shown. The Plaintiff had also produced photographs of his land bearing Gat No. 1465 in which photographs the existence of the trees appears. The Trial Court considered the said application Exhibit 5 and after referring to the said material on record has observed that the existence of the trees cannot be denied however, whether the trees are in the land of the Plaintiff or the Defendants, some clarity in that respect is required. The Trial Court accordingly rejected the application for temporary injunction filed by the Plaintiff by its order dated 6-11-2012.

4. Aggrieved by the said order dated 6-11-2012 the Plaintiff carried the matter in Appeal by filing Misc. Civil Appeal No. 251 of 2012. In the said Appeal, an order of status-quo has been passed on 2-1-2013 and the Learned Counsel for the parties are ad-idem that the said Appeal is as yet pending. It is pending the said Appeal that the instant application Exhibit 42 came to be filed by the Plaintiff for appointment of the Court Commissioner invoking Order XXVI Rule 9 of the Civil Procedure Code. The appointment of the Court Commissioner was sought in view of the stand taken by the Defendants in their Written Statement and especially in paragraph 6 thereof it was the case of the Plaintiff that having regard to the pleadings in the Suit and having regard to the nature of the relief sought in the Suit, the appointment of the Court Commissioner was necessitated. The Trial Court considered the said application Exhibit 42 and has by the impugned order dated 13-3-2014 rejected the same. The Trial Court was of the view that the Plaintiff is claiming ownership of the trees as also the Defendants are claiming ownership of trees on the North side of the land owned by them i.e. Gat No. 1464 and therefore the Plaintiff has to prove his case by independent evidence and therefore the appointment of the Court Commissioner was not warranted. The Trial Court further observed that the appointment of the Court Commissioner was not necessitated in view of