The central legal point established in the judgment is that the court has the discretion to determine whether it is requisite or proper to issue a survey commission under Order 26, Rule 9, CPC based on the pleadings and material available on record.

Devendra Kumar Upadhyaya, J. –

Heard learned counsel for the petitioner.

2. A suit for permanent injunction filed by the petitioner-plaintiff is pending before the learned trial court. In the said suit, the petitioner moved an application under Order 26, Rule 9 , CPC stating therein that the land in suit is old abadi, situate in village Pure Beisan, Majre Sarai Madhav, Pargana Inhouna Tehsil Tiloi, District Raebareli and further that the revenue number of said property is khasra plot no. 546. It was also stated in the said application that the plot number 537 belonging to the defendant lies on the southern side of the property in dispute and the defendant is attempting to project land of khasra plot no.537 which is the land belonging to the petitioner and in these circumstances, it would be appropriate to issue a survey commission for determining the exact location of plot no.537. In the said application, the petitioner has also made a prayer that the earlier order dated 14.07.2010 passed by the court below rejecting the application under Order 26, Rule 9 , CPC may be cancelled and survey commission may be issued.

3. Learned trial court considered the said application and has rejected the same by observing that in the entire plaint the petitioner had not shown gata number of the land allegedly belonging to him and further that an application for correctly determining the position of the land belonging to gata no. 537 given earlier was rejected on 14.07.2010. Learned trial court has also observed in the impugned order dated 26.11.2014 that the order dated 14.07.2010 became final between the parties as the same was not challenged by the plaintiff by way of filing any revision petition.

4. The petitioner challenged the said order passed by the learned trial court dated 26.11.2014 by filling a revision petition under Section 115, CPC before the learned District Judge.

5. The revisional court, while agreeing with the findings recorded by the learned trial court and the view taken therein, has dismissed the revision petition as well. The revisional court has clearly observed that the order dated 14.07.2010 was passed by the learned trial court rejecting the earlier application moved by the petitioner under Order 26, Rule 9 , CPC and thereafter there was no occasion to recall the said order and adjudicate the application moved by the petitioner afresh. Learned revisional court has also recorded the finding that it is for the court to determine as to whether any commission is to be executed under Order 26, Rule 9 , CPC.

6. The Commission can be issued to make any local investigation or elucidating any matter in dispute, if it is found to be requisite or proper by the learned court concerned. In the instant case, the learned trial court as well as revisional court have given a categorical finding that the pleadings and material available on record do not make out a case wherein it can be said to be requisite or proper to issue a Commission to elucidate the matter in dispute. The order passed by the learned trial court as affirmed by the revisional court is well considered order for the reason that detailed reasons have been assigned for rejecting the application moved by the petitioner.

7. It is also noticeable that so far as the land of gata no. 537 said to be belonging to the defendant is concerned, demarcation under the statutory provisions contained in Section 41 of U.P. Land Revenue Act has already been done.

8. Considering the over all facts and circumstances and material available on record, the court below has rejected the application moved by the petitioner. Thus, the impugned orders do not call for any interference by this Court in these proceedings.

9. The petition is dismissed accordingly.

Petition dismissed accordingly.