The central legal point established in the judgment is that the appointment of a Commissioner for local investigation should only be done for convenience and after considering the evidence produced by the parties.

ORDER

1. By the instant petition filed under Article 227 of the Constitution of India, the petitioner is asking for following relief:

"7.1 That, the Honble Court may be pleased to call for the record of the court below for its kind perusal and reference.

7.2 That, the Honble Court may be pleased to issue appropriate writ, order or direction quashing and setting aside the orders as contained in annexure P/7 passed by the court below in its entirety resultantly the application filed vide annexure P/5 by defendants no.1 and 2 for appointment of Commissioner be dismissed with costs throughout.

7.3 That, any other writ, order or direction which is deemed fit and proper under the circumstances of the case be issued together with awarding the cost of the petition."

2. The facts of the case in a nutshell are as follows:

(2.1) The plaintiff/petitioner has filed a suit i.e. Civil Suiit No.42-A/2018 for declaration of title and injunction claiming himself to be the owner of the land in suit and possessed the same. The suit land was described in the map attached with the plaint seeking injunction therein that the defendants/respondent Nos.1 and 2 be restrained from interfering with the rights, title and possession of the plaintiff/petitioner.

(2.2) The written statement was filed by the defendants/respondent Nos.1 and 2 denying the averments made in the plaint and denying the title of the plaintiff/petitioner over the suit land. As per the defendants, the owner of the suit land was Munna s/o Kashiram Kumhar, but not the plaintiff.

(2.3) There was some dispute between the parties before the revenue authorities in a proceeding initiated under Sections 107 and 129 of the M.P. Land Revenue Code, 1959 (hereinafter referred to as the Code, 1959) in which according to the plaintiff, the report was obtained by the defendants using their high political connection without giving any notice to the plaintiff and on the basis of said report, the defendants are trying to grab the property which is a valuable property situated at the adjoining land of the plaintiff.

(2.4) In the pending civil suit, an application under Order 26 Rule 9 of the Code of Civil Procedure was moved by the defendants/respondent Nos.1 and 2, but that application was dismissed by the trial Court vide order dated 23.10.2018.

(2.5) After rejecting the application, the defendants/respondent Nos.1 and 2 again moved the application under the same provision i.e. Order 26 Rule 9 of CPC for issuing commission so as to investigate the land or to get proper demarcation. The said application was also opposed by the plaintiff/petitioner, who also filed reply to the application, but the trial Court vide order dated 20.11.2018 (Annexure-P/7) allowed the application directing appointment of Commissioner so as to ascertain the boundaries of the land in question ignoring the fact that the proceeding between the parties under Section 129 of the Code, 1959 is already pending before the Board of Revenue Gwalior. Since the application was allowed by the trial, therefore, the petitioner has filed this petition.

3. The learned senior counsel appearing for the petitioner is challenging the impugned order mainly on the ground that once application under Order 26 Rule 9 of CPC has been rejected then in the same circumstance, second application cannot be entertained and allowed by the Court. Learned senior counsel has contended that the application has been filed just to collect the evidence in support of the stand of the defendants/respondent Nos.1 & 2 and, therefore, said application could not have been allowed because as per the settled principle of law, the Commissioner cannot be appointed to collect the evidence to make the case of a particular party strengthen.

4. Learned counsel appearing for respondent Nos.1 and 2 has submitted that looking to the dispute involved in the case, it can be easily gathered that it was a dispute with regard to boundaries and identification of the land, therefore, nothing wrong has