With the consent of parties, petition is heard finally.

1. The petitioner has filed the present petition against the orders dated 11.2.2015, 16.5.2015 and 22.7.2015, passed in Civil Suit No.115/2014, by Civil Judge, Class-II, Mahidpur, by which an application under Order 39 rule 7 of the CPC has been allowed. The petitioner is further aggrieved by the findings recorded by the learned Civil Judge that the respondent No.1 is in possession of the suit property.

2. The facts of the case are as under :

The present respondent No.1, being plaintiff, has filed a suit against respondent No.2 and the State of Madhyra Pradesh for declaration of his right to half share in the property bearing Survey No.390 (Area 1.69 Acre). The claim of the respondent No.1 is based on his adoption by the husband of respondent No.2. By way of written statement, respondent No.2 has denied this averment and stated that she is the sole heir of her husband and further stated that she has already sold the suit land to the present petitioner by registered sale deed dated 28.6.2014.

3. On account of the aforesaid pleading about the sale, the petitioner was impleaded as defendant No.4 in the pending suit vide order dated 24.9.2014. After notice, the petitioner entered his appearance and filed written statement and stated that by virtue of sale deed dated 28.6.2014, his name has been mutated in the revenue records and pleaded that he is in possession over the suit land.

4. The respondent No.1/plaintiff filed an application under Order 39 rule 7 of the CPC praying for inspection of the property to ascertain about the possession over the suit land. The said application was opposed, however, vide order dated 11.2.2015, the trial Court has allowed the application and appointed Tahsildar, Mahidpur as Commissioner to inspect the land and submit a report in that regard. In pursuant to the said order, Tahsildar, Mahidpur submitted a report dated 24.3.2015. Being dissatisfied with the aforesaid report, the learned civil Judge again directed the Tahsildar to submit another report about who is in possession over the land. Again the Tahsildar submitted a report by the impugned order dated 16.5.2016 has held that the plaintiff i.e. repondent No.1 is having possession over the suit property. Thereafter, the petitioner filed an application for review, but by impugned order dated 22.7.2015, the same has also been rejected.

5. Hence the present petition challenging all the three orders dated 11.2.2015, 16.5.2015 and 22.7.2015.

6. Shri P.V. Bhagwat, learned counsel for the petitioner submits that the learned trial Court has wrongly considered the report about the possession under the provisions of Order 39 rule 7 of the CPC. The trial Court has travelled beyond its jurisdiction to entertain application under Order 39 rule 7 of the CPC. The issuance of commission is always under the provisions of Order 26 of the CPC, that too, after framing of the issues. The provisions of order 39 rule 7 has wrongly been invoked. The trial Court has wrongly recorded the finding that the plaintiff is in possession, whereas, the report of the Tahsildar speaks otherwise. In fact the Tahsildar has recorded that the present petitioner is in symbolic possession.

7. Per contra, Shri Prakash Pancholi, learned counsel for the respondent No.1 and Shri Manish Verma, learned counsel for the respondent No.2 argued in support of the impugned order and submits that the trial Court has not committed any illegality while passing the impugned order. When there is a dispute of possession over the property between the parties, then obtaining a report by appointing a commission is the only remedy.

ORDER

8. It is not disputed that the plaintiff filed an application under Order 39 rule 7 which is reproduced below :-

“7. Detention, preservation, inspection, etc., of subject matter of suit-(1) The Court may, on the application of any party to a suit, and on such terms as it thinks fit-

(a) make an order for the det