Garg, J. -- 1. The plaintiff being aggrieved by the order dated 4.9.2008 passed by the learned Xth Civil Judge, Class-I, Gwalior in Civil Suit No. 154A/2008 where under plaintiffs application filed under Order 26 Rule 9 of the CPC was rejected, has come to this Court with a submission that the learned Court below contrary, to the legal provisions, has rejected the application without appreciating that provision contained in Order 26 Rule 9 CPC are for providing assistance to the Court and are not for creating complication in the matter.

2. The short facts necessary for disposal of the present case are that the plaintiff filed the Civil Suit with a submission that he is owner of Survey No. 282 admeasuring 1 Bigha and 2 Biswa and two constructions in dispute have been made upon Survey No. 282 on part thereof and as defendant is creating problems, declaration and appropriate injunction be granted against the defendants. The defendants appeared in the Court and inter alia pleaded that the suit construction is in Survey No. 307 and that the plaintiff is not the owner of Survey No. 282 or at least of the part whereon construction has been raised. Before commencement of the evidence, the plaintiff moved an application under Rule 9 of Order 26 of CPC with a submission to the Court that appropriate spot inspection be directed under the hands of the Revenue Officer so that the correct position of the spot comes before the Court. The application was contested tooth and nail by the defendants and after hearing the learned counsel for the parties, the learned Court below rejected the said application.

3. Shri U.K. Jain, learned counsel for the plaintiff-petitioner in support of the petition, submitted that the learned Court below has not appreciated the dispute between the parties and also erred in not appreciating the legal provision. It is submitted by him that even if there is a dispute relating to the ownership over Survey No. 282 or on part thereof then too, the plaintiff would be entitled to make an application for issuance of commission for spot inspection and report of the commissioner. It is submitted by him that a suit cannot be tried in different parts or peace meal, submission is that if the plaintiff proves title on Survey No. 282 or the land in dispute then he would not be required to file any suit but the question relating to the declaration and injunction will have to be decided in the present suit.

4. Shri B.D. Jain, learned counsel for the respondent, on the other hand submitted that the hind in dispute or the Survey No. 282 does not belong to the plaintiff, therefore, at this stage, such a commission could not be issued. His submission is that before coming to the Court, the plaintiff could ask the Revenue Officer to go to the spot, demarcate the land and provide exact position of the spot. The submission in fact is that the plaintiff cannot be allowed to collect evidence through the agency of the Court.

5. We have heard the parties at length.

6. The suit of the plaintiff is for a declaration that the plaintiff is the owner of the property in dispute and the defendants have no connection with the property. The further relief is that the defendants be restrained from demolishing the property in dispute and from dispossessing the plaintiff from the property in dispute.

7. The defence of the defendants was that Survey No. 282 does not belong to the plaintiff. If the plaintiff proves (we presume) that he is the owner of the property in dispute then the plaintiff would also be obliged to prove that the construction belongs to him and that he being the owner of the property is entitled to have the full enjoyment to the property. Rule 9 of Order 26 of CPC does not mean to say that an application for appointment of the Commissioner is to be made before casting the issues or at any earlier point of time. The language of Rule 9 clearly provides that when a Court deems a local investigation to be requisite or p