ORDER

1. This petition under Article 227 of the Constitution of India has been preferred by the plaintiffs/petitioners being aggrieved by the order dated 1.12.2023 passed by the trial Court whereby their application under Order 26 rule 9 of the CPC for appointment of a Local Commissioner has been rejected.

2. The plaintiffs have instituted an action against the defendants for declaration, mandatory injunction and permanent injunction. The relief claimed by them is for directing the defendants to reconstruct the wall measuring 50 feet in length located towards the eastern side of their house. As per the plaintiffs the same has been demolished by the defendants.

3. The defendants have contested the plaintiffs' claim by filing their written statement in which the allegations as levelled by plaintiffs have been denied. On the basis of pleadings of the parties issues have been framed by the trial Court.

4. Thereafter, plaintiffs filed an application under Order 26 rule 9 of the CPC for appointment of a Local Commissioner for demarcation of the disputed property and submitting spot inspection report. They stated that the dispute is as regards boundaries of the respective parts of the houses owned by the parties which can only be decided by appointment of a Local Commissioner. The application was contested by defendants by filing their reply to the same.

5. By the impugned order the application has been rejected by the trial Court by observing that in the plaint the plaintiffs have not given exact description of the suit property and the boundaries of the same for the purpose of demarcation have not been given specifically. The area of the house and the dimensions have also not been given, hence it appears that by way of the application the plaintiffs are trying to collect evidence which is not permissible.

6. Learned counsel for plaintiffs has submitted that from the pleadings of the parties, it is evident that the dispute between them is a boundary dispute and as regards the extent and location of the wall situated in between their houses. In the plaint there is sufficient description of the properties of both the houses for the purpose of an appointment of a Local Commissioner. The trial Court has erred in holding that description of the disputed property has not been properly given by plaintiffs. Since there is a dispute as regards boundaries, appointment of a Local Commissioner is imperative. Reliance has been placed by him on the decision of this Court in Keshav Singh v. Dhantobai and others 2009 (II) MPWN 2, Loknath Gautam v. State of M.P. and others 2018 SCC Online MP 600 and Sir Shadaksharappa v. Kumari Vijayalaxmi and others 2023 SCC Online Kar 53.

7. Per contra, learned for the defendants has submitted that no error has been committed by the trial Court in rejecting the application preferred by the plaintiffs. From the pleadings of the parties, it is evident that it is not a boundary dispute between them. The plaintiffs have not given any description of the property in the plaint for enabling the Commissioner to carry out demarcation. By way of the application the plaintiffs are trying to collect evidence which is not permissible. The impugned order passed by the trial Court is a discretionary order which is not liable to be interfered with. Reliance has been placed on the decision of this Court in Suryabhan Singh v. State of MP 2006 SCC Online MP 852, Geeta Mandir Trust v. Ramchandra 1998 (1) MPWN 298 and order dated 29.8.2017 passed in W.P. No.860 of 2017 [Rajendra Kumar v. Pawankumar].

8. I have considered the submission of learned counsel for the parties and have perused the record.

9. The pleadings as regards the description of the properties of both the parties may be seen. In paragraph No.3 the plaintiffs have given the description of the houses and the length and breadth of the wall between them. They have pleaded that the defendants have demolished one feet of the wall and are now using their wall. Since the length and br