ORDER

1. Present misc. petition under Article 227 of Constitution of India has been filed against the order dated 8.3.2019 in Civil Suit No. 102-A/2018 by the Civil Judge, Class-II, Mungawali, District Ashoknagar, whereby, application filed by the respondent/defendant under Order 39 rule 7 of CPC has been allowed.

2. The brief facts leading to filing of this petition are that petitioner/plaintiff filed this instant Civil Suit seeking declaration of title and permanent injunction. It is pleaded by plaintiff that she purchased the property of Survey No. 928 Min 2 ad-measuring 1168.2 sf vide registered sale deed dated 25.7.2016 and further in the same survey number another area of 236.25 sq. feet has been purchased vide registered sale deed dated 9.3.2017.

3. It is submitted that the mutation in respect to above land was duly accepted by the Authorities and her name was recorded in the Revenue Records. It is pleaded in the plaint that on 20.9.2018, the plaintiff went to the spot to raise the construction on the disputed land, but she was obstructed by the defendants, therefore, instant suit has been filed.

4. Defendant No. 1 filed the written statement and admitted the plaint pleadings.

5. Defendant No. 2 and defendant No. 3 to 7 filed their written statements and prayed for dismissal of the suit denying the plaint pleadings.

6. During the course of trial, an application was filed by the petitioner/plaintiff under Order 39 rule 1 and 2 of CPC, but the same was pending and prior to the decision thereof, the application under Order 39 rule 7 of CPC filed by respondents/defendants No. 3 to 7 has been decided by learned trial Court by the impugned order.

7. Learned counsel for the petitioner argued that the impugned order is bad in law and against the settled principle of law and perverse. It is further argued that by the impugned order, learned trial Court called the commissioner report relating to the fact that whether plaintiff is in possession of the disputed property. It is settled in law that under Order 26 rule 9 or under Order 39 rule 7 of CPC, no commissioner report can be called in order to ascertain the fact that who is in possession of a particular property. To decide the application, the learned trial Court wrongly framed the issue No.1 against the settled principle of law in respect to the possession. The learned trial Court has also framed second issue that whether the land in dispute is surrounded by the land of Ganesh Temple. Admittedly defendant No. 1 who is the Pujari of Genaesh Temple has not raised any dispute regarding the said fact. In such circumstances, the impugned order deserves to be set aside.

8. Heard.

9. From perusal of the record it reveals that in its application filed under Order 39 rule 7 of CPC, respondents have not sought any relief in respect to collection of evidence about the possession over the disputed land. However, learned trial Court had directed to call for the Commissioner report in relation to the fact that whether plaintiff is in possession of the disputed property. It is well settled that commission cannot be issued for collection of evidence and no order can be passed in order to ascertain the fact regarding who is in possession of the particular property. However, learned trial Court had passed the order contrary to above settled principle of law.

10. Accordingly, present petition is allowed and the impugned order dated 8.3.2019 passed in Civil Suit No. 102-A/2018 by the Civil Judge, Class-II, Mungawali, District Ashoknagar is hereby quashed, consequently, the application under Order 39 rule 7 of CPC filed by the respondent is hereby dismissed.

A copy of this order be sent to the Courts below for information and necessary compliance.