ORDER

1. It is seen from the Order-sheet dated 22.9.2017 that this Hon’ble Court has granted interim relief and stayed the proceedings of the trial Court in COS No. 5-A/2015, and the case is pending since almost two years and despite of service of the respondents none appeared on behalf of respondent No. 1, therefore, the matter is finally heard.

2. The present petition has been filed by the petitioner challenging the Order dated 4.9.2017 passed by Additional Civil Judge Class-I to the Court Ist Civil Judge Class-I, Ashoknagar whereby, the application under Order 26 rule 9 CPC for appointment of the Commissioner filed by the plaintiff/respondent No. 1 at the stage of the plaintiff’s evidence, is allowed. Counsel for the petitioners has submitted that the learned trial Court has wrongly allowed the application and has exceeded its jurisdiction in issuing directions to the Commissioner to find out that who is the Bhumiswami of the property, whether any encroachment is being done etc.? He has drawn attention of this Court to the sale-deed and the map attached with the sale-deed as well plaint, wherein the relief which has been claimed by the plaintiff is with respect to survey No. 1306/1 area being 0.063 hectare. From paragraph 1 of the plaint he has shown that the civil suit for declaration and injunction and for removal of encroachment is being filed with respect to survey No. 1306/1 area 0.063 hectare along with other survey numbers. It is alleged that the area of both the survey numbers is same and as 1306 is a larger survey number than survey No. 1306/1. It is further alleged that case is at plaintiff’s evidence stage when the Order was passed. He has further drawn attention of this Court to the application under Order 26 rule 9 CPC and has argued that there is no mention of any dispute with respect to boundaries in the aforesaid application and once the plaintiff is not the Bhumiswami of survey No. 1306 which is clear from the sale-deed then he has no right to file an application under Order 26 rule 9 CPC for appointment of Commissioner for the aforesaid land. He has relied upon the judgments of the Hon’ble High Courts in the case of Ashutosh Dubey and Anr. v. Tilak Grih Nirman Sahkari Samiti & Anr. reported in 2004 (3) MPLJ 213 and Ashok Kumar Patel & Ors. v. Ram Niranjan & Ors. reported in 2007 (III) MPWN 123 and in the case of Babukhan v. Kaptan Singh reported in 1980 (II) WN 261 and in the case of Rais Khan and Anr. v. Pradeep and Ors. reported in 2016 RN 239, and has argued that application under Order 26 rule 9 CPC should not be entertained for collection of evidence. The leaned trial Court has exceeded its jurisdiction and has directed the Commissioner to find out that who is the Bhumiswami of the property in question, who is in possession etc. which is beyond the scope of Order 26 rule 9 CPC. Accordingly, has prayed for setting aside of the impugned Order.

3. Heard learned counsel for the petitioner and perused the record.

4. The learned trial Court by allowing the application under Order 26 rule 9 of CPC has directed the Commissioner as under:

Þdfe'uj dks funsZf'kr fd;k tkrk gS fd og oknxzLr Hkwfe esa tkdj fuEu fcUnqvksa ij tk¡p dj izfrosnu U;k;ky; esa izLrqr djs -
1- okni= layXu ekufp= esa oknxzLr nqdku ,oa Hkw&[k.M dk Hkwfe losZ Øekad 1306 jdck 0-063 gsDVs;j dk Hkw&Hkkx gSA
2- mDr Hkwfe jktLo vfHkys[kksa esa fdlds LokfeRo o vkf/kiR; ds uke banzkt gSA
3- oknxzLr nqdku ,oa Hkw&[k.M ftl losZ uacj ij cuk gS mlds HkwfeLokeh jktLo vfHkys[kksa esa dkSu gSaA
4- rFkk oknxzLr nqdku ,oa Hkw&[k.M ij izfroknh vfrdzked gSA
dfe'uj mDr fcUnqvksa ds laca/k esa uki&tksi dj rFkk mDr LFkku dh laiw.kZ tk¡p djus ds mijkar vkxkeh fu;r fnukad 20-9-2017 ;k blds iwoZ vko';d :i ls U;k;ky; esa izLrqr djsaAß

5. Order 26 rule 9 of CPC is required to be seen:

“9. Commissions to make local investigations --

In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter i