The discretion to appoint a Commissioner for spot inspection and demarcation of property under Order 26 Rule 9 of CPC lies with the Trial Court, and the nature of relief is purely discretionary.

JUDGMENT :

Vishal Mishra, J.

Heard through Video Conferencing.

1. The present petition is being filed by the petitioners challenging the order dated 15.9.2012 passed in Civil Suit No. 23A/2012 by First Civil Judge Class II, Morena whereby the application filed under Order 26 Rule 9 of CPC for spot inspection and demarcation of Survey No. 368 and Survey No. 379 situated at Village Shikarpur, Tahsil and District Morena has been rejected.

2. It is submitted that the petitioner plaintiffs have filed a civil suit before the Trial Court for declaration and permanent injunction with respect to the Survey No. 368 Min Part A, B, C and D. Application for temporary injunction was also filed along with the Civil Suit. The defendants after being served has filed response to the reply of the temporary injunction and denied the entire allegations. Thereafter the plaintiff/petitioner filed an application under Order 26 Rule 9 read with section 151 of CPC to the effect that there appears to be some boundary dispute as is reflected from the map. The defendants have alleged encroachment and the aforesaid encroachment cannot be clarified without any demarcation of the property. The plaintiff has specifically pleaded encroachment and they want to raise construction over the disputed land which is of their ownership. The learned Trial Court has rejected the application on the ground that it is a duty of the plaintiff to prove his case and by the aforesaid application the collection of evidence is not permissible. It was further observed that from the pleadings available on record there appears to be no dispute with respect to the map of the boundaries. In such circumstances, the application was rejected. The petitioner has relied upon the judgments passed by the Court in the case of Arun Kumar Vs. Namdeo, 1987-1 MPWN 71, Kamlesh Sharma (Smt.) Vs. Komal Chand Kesharwani, 1998 (II) MPWN 40 and Tara Singh Vs. Shri Parshvanath Digember Jain Mandir Pisanhari Madhiya Trust, 2002 (II) MPWN 17 and has argued that in all the aforesaid cases it is settled that once there is a dispute with respect to the boundaries of the map as is mentioned and reflected in the plaint the Court should have directed for issuance of commission and should have allowed the application under Order 26 Rule 9 of CPC. In such circumstances, he has prayed for setting aside the impugned order and allowing of application.

3. Despite service nobody has appeared for the respondents in the matter.

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

5. On perusal of the record, it is seen that petition is filed in the year 2012 and the interim relief was granted by this Court on 25.4.2012 and the proceedings of the civil suit were stayed and since then the petition is pending consideration on this small issue.

6. It is seen from the record that in a civil suit for declaration and permanent injunction an application under Order 26 Rule 9 CPC read with section 151 of CPC was filed by the plaintiff seeking spot inspection and demarcation of the property in dispute alleging therein that from the map it is clear that there is some boundary dispute. The plaintiff has also alleged encroachment over the property which could have only be clarified by demarcation. Order 26 Rule 9 of CPC is required to be seen which reads as under:

"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 in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."

7. The Single Bench of this Court in the case of Suryabhan Singh V