1. - This Misc. Appeal under Order 43 Rule 1(r) of CPC has been filed against the order dated 5.10.2012 passed by the Addl. District Judge, Jhunjhunu Camp Chidawa in Civil Misc. Temporary Injunction Application No. 21/2011 whereby the temporary injunction application of the appellant has been rejected.

2. The contention of the present appellant is that he is the owner of the land and the land is in possession of the present appellant which is situated at village Jakhod, Tehsil Chidawa. Part of the land was donated by Jakhodia Charitable Trust of which the plaintiff appellant is the trustee. Now, the land in question belongs to the charitable trust. The appellant filed the civil suit for cancellation of sale deed along with temporary injunction application which was rejected in spite of the fact that the present appellant is the owner of the land and also the land in possession of the present appellant. Hence this appeal.

3. Per contra, contention of respondents is that the land in question is ancestral land of the present respondents and present appellant has sold the land to Shambhu Dayal in terms of compromise entered in a Suit No. 34 of 2004 titled as Manohar Lal v. Shambhu Dayal decided on 18.3.2011 by court of Civil Judge (Jr. Div.) Pilani. Hence, the court below has rightly rejected the application, the appellant is not having possession of the land and the commissioner reports have been rightly rejected by the court below.

4. Heard learned counsel for the parties and perused the impugned order.

5. The contention of the present appellant is that the land is an ancestral property and thereafter it was handed over to charitable trust and court below has not considered the commissioner report rightly.

6. The contention of the respondents is that property is their ancestral property, it does not belong to charitable trust. Furthermore, their contention is that looking to the bar under section 29 of the Rajasthan Public Trust Act, unregistered trust cannot initiate a suit. Section 29 of the Rajasthan Public Trust which reads as follows:

"Bar against suits by unregistered trust.- (1) No suit to enforce a right on behalf of a public trust which is required to be registered under this Act but has not been so registered shall be heard or decided in any court."

7. It has never been pleaded by the appellant that the Jakhodia charitable Trust is the registered trust and when the trust is unregistered, the bar of section 29 will operate and suit itself is barred under section 29 and the temporary injunction application has rightly been rejected.

8. The other contention of the appellant is that commissioner has specifically stated that the present appellant is having the possession over the land for which the contention of the respondent is that looking to the provisions of Rule 67 of the General Rules (Civil), 1986, the commissioner was not competent to ascertain the fact of possession. Rule 67 of reads as follows:

"Particulars to be given in the order for local investigation-.........No point which can conveniently and ought to be substantiated by the parties by evidence at the trial shall be referred to the commissioner."

9. The bare reading of the above clearly suggest that factum of possession cannot be proved by the commissioner report and further reliance has been placed on RLR 1998 (1) page 123, Union of India and another v. M/s Kripal Industries and AIR 1996 (Karnataka) 257, Puttappa v. Ramappa , where it has been held as under:

"In a suit for injunction the question as to who is in possession of the property, is a matter to be decided by the Court on the basis of evidence, either oral or documentary, to be adduced by the parties. That function cannot be delegated to a Commissioner who cannot find out as to who is in possession of the property."

10. Looking at the above legal position, the court below has rightly not relied on commissioner report as it was not within the competence of the commissioner to make an inquiry abo