The main legal point established is that the provision of Order XXVI Rule 10 (2) of C.P.C. allows for cross-examination of the Court Commissioner on the procedure followed in conducting the survey, but does not permit the parties to summon the Commissioner with instruments for an actual demonstration.

JUDGMENT :

1. Heard learned counsel for the petitioners and Ms. Rama Goel, learned counsel for the respondents.

2. The petitioners, by means of the present writ petition, have assailed the order dated 22.02.2022 passed by the Civil Judge (Junior Division), Jhansi in Original Suit No.69 of 2007, by which the application of the petitioners being application No.493D for summoning the Survey Commissioner with 'Guniya and Prakar (Compass)' to demonstrate the procedure before the Court as to how he had measured the property in question during survey has been rejected and the order dated 22.03.2022 passed by the District Judge, Jhansi in Civil Revision/Misc. Case No.35 of 2022 affirming the order passed by the trial Court dated 22.02.2022.

3. The petitioner no.1 instituted an Original Suit No.69 of 2007 (Durga Prasad Vs. Smt. Manju Singh and another) praying for cancellation of sale deed dated 22.03.2007 in respect of plot No.675/6 and permanent injunction restraining the respondents from interfering with the peaceful possession of the petitioners in the property in dispute.

4. It appears that in the suit, three times Survey Commissioner has been appointed. The last Survey Commissioner was appointed in the year 2017 for surveying the property in dispute on the application of the petitioners. The Survey Commissioner submitted his report on 31.03.2017.

5. The petitioners being dissatisfied with the Survey report submitted by the Survey Commissioner, filed objection under Order XXVI Rule 10 (2) of C.P.C. The Survey Commissioner was summoned for cross examination and the cross examination of the Survey Commissioner is continuing and has not yet closed. During the cross examination of Survey Commissioner, the petitioner submitted application 493D praying that the Survey Commissioner be summoned with 'Guniya and Prakar (Compass)' to demonstrate as to what procedure he had adopted in surveying the property in question.

6. The said application of the petitioners has been rejected by the trial Court vide order dated 22.02.2022 holding that the Survey Commissioner is of 74 years of age and he is old, therefore, it is not proper to summon him with 'Guniya and Prakar (Compass)' to demonstrate as to how he surveyed the property in question. Consequently, the trial Court found no merit in the application and dismissed the same.

7. The revisional court by order dated 22.03.2022 affirmed the order passed by the trial Court dated 22.02.2022. The revisional court while rejecting the revision gave an independent finding holding that the first Survey Commission application was filed on behalf of the petitioners in the year 2011 and the same was allowed and this is the third Survey Commissioner Report which was submitted on 31.03.2017 and is pending for disposal since then.

8. The revisional court further held that it is not in dispute that petitioners submitted application for cross-examination of Survey Commissioner under the provisions of Order 26 Rule 10 (2) of C.P.C. and the cross-examination of the Survey Commissioner started on 18.09.2021 and is still continuing. The revisional court further held that it is clear from the record that it is still open to the parties to cross-examine the Survey Commissioner as per the provisions of Order 26 Rule 10 (2) of C.P.C. as the cross examination of Survey Commissioner has not yet been closed, therefore, the opportunity to cross-examine the Survey Commissioner has not been closed. Accordingly, it held that appropriate question may be asked by the petitioners in cross-examination from the Survey Commissioner regarding procedure followed by the Survey Commissioner, and the application has been filed only to delay in disposal of the suit.

9. Challenging the said order, learned counsel for the petitioners has submitted that the reading of Order 26 Rule 10 (2) of C.P.C. clearly demonstrates that any party can ask for Court Commissioner to demonstrate the manner and procedure which he had followed in conducting the survey,