JUDGMENT

Sanjeev Prakash Sharma, J. - By way of this writ petition, the defendants-petitioners have prayed for quashing and setting aside the order impugned dated 07/08/2015 whereby the objections filed by them against the inspection conducted by the Commissioner appointed by the learned trial court have been rejected and the inspection report has been accepted.

2. Brief facts which need to be considered are that the plaintiff-respondent (Sher Singh), whose legal heirs are respondents in the present writ petition, filed a suit for declaration against the defendants-petitioners stating that he is co-tenant of the land bearing Khasra No.184 together with Khasra No.183, 183/335, 184/336, 182/334, 197, 198, 167, 170 situated at Village Thada, Tehsil Tijara, District Alwar.

3. Along-with the suit, the plaintiff-respondent also moved an application under Order 39, Rule 1 & 2 CPC praying for injunction as against the defendants-petitioners for restraining them from causing hindrance in use of the way, having 20ft. width and 350ft. Length, leading to the lands of the plaintiff-respondent.

4. The defendants-petitioners filed written statement and reply to the application for temporary injunction and stated that there was an alternative way to lead to the lands of the plaintiff-respondent which is much broader and more convenient. It was denied that there was any way existing from the lands of the defendants-petitioners.

5. Upon the said submission, at the request of the plaintiff-respondent, Commissioner was appointed for conducting inspection of the site by the learned trial court to see the actual position regarding the way.

6. The Commissioner accordingly conducted inspection of the site and submitted report wherein it was stated that on the disputed site there appears a way as there are marks of grass cut due to harrow attached to the tractor passing through the lands of the defendants-petitioners leading towards the lands of the plaintiff-respondent. It was also noted that the defendants-petitioners had asked the Commissioner to look into the other side of the site to show that there was an alternative way available. However, the Commissioner has refused to conduct inspection of the area other than the disputed site whereupon an application was moved before the learned trial court raising objections relating to the report of the Commissioner.

7. The learned trial court vide its order dated 07/08/2015 rejected the objections of the petitioner regarding the report of the Commissioner dated 30/07/2015 stating that if there is any alternative way available, it was for the petitioner to prove the same in the trial. The defendants-petitioners had also moved another application under Order 39, Rule 7 CPC for appointment of the Commissioner in light of the aforesaid findings but the said application of the defendants-petitioners was dismissed by the learned trial court vide order dated 09/10/2015 and therefore, the defendants-petitioners preferred SB Civil Writ Petition No.16365/2015 assailing the order dated 09/10/2015 with the prayer for appointing of the Commissioner.

8. Learned counsel for the defendants-petitioners stated that as this Court was of the view that the defendants-petitioners ought to challenge the order dated 07/08/2015, the writ petition was allowed to be withdrawn to file afresh vide order dated 24/05/2017 assailing the order dated 07/08/2015.

9. Learned counsel for the defendants-petitioners submitted that once a Court Commissioner is appointed under Order 39, Rule 7 CPC and the order by which he has been appointed a Commissioner mentions about the dispute raised by the parties, for the purpose whereof the Commissioner has been appointed, it was necessary for the Commissioner to have conducted the inspection in terms of Order 39, Rule 7 CPC and submit the entire report. When the objection was raised relating to the site report, the learned trial court ought to have taken note of the fact that the Commissioner's report had not