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S.B. Sakrikar, J.
Chunnilal v. Ramchandra
C.R. No. 1055 of 2000(I); Decided on 8.10.2001.*
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Plaintiff-applicant has directed this revision against the order dated 13.11.2000 passed by IInd Civil Judge, Class II, Dhar in Civil Suit No. 1A/2000, thereby allowing the application filed on behalf of the respondents u/o 26 R. 9 of the CPC for appointment of the Commissioner and his report with regard to actual possession of any of the parties on the disputed land.
The L.C. for applicant challenged the aforesaid order, relying on the decision of this Court in Case of Babu Khan v. Kaptan Singh (1980(2) MPWN 261 and submitted that the. trial Court is not competent to appoint Commissioner for his report on the question of possession on the disputed land. He also submitted that the Court shall not issue commission for collecting evidence for any of the parties.
In view of the submissions of the L.C. for parties and on perusal of the judgment of this Court in Babukhan's case (supra), in my opinion, the trial Court has committed an error in appointment of the Commissioner for his report on the point of actual possession of the person on the disputed land. In Babukhan's case (supra), this Court in the similar circumstances has held that:
"The Court cannot delegate to the Commissioner, the trial of any material issue which it is itself bound to try. In other words, a Judge cannot depute to a Commissioner the functions which he can and should discharge himself. When the Court is faced with the problem as to who is in possession of the disputed immovable property, the problem has to be solved by the Court on the basis of the evidence on record".
In view of the facts and circumstances of the case on hand and the law applicable, I find that the order of the trial Court is in accordance with the law and deserves to be quashed.
Consequently, this revision petition is allowed. The impugned, order of the trial Court appointing Commissioner for his report stands quashed. No orders as to costs.
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