IMPORTANT POINT
Order 26, Rule 9 of CPC gives discretion to Court to issue a Commission directing to make local investigation for purpose of elucidating any matter in dispute.

Hasnain Massodi, J.—The present Civil Revision calls in question the order of learned Sub Judge, Jammu in an application titled, Rajiv Sharma v. Budha Ram under Order 26 CPC whereby the learned trial Judge has appointed a commissioner to demarcate the subject matter of the suit titled as above, awaiting disposal before the trial Judge.

2. In order to understand the controversy it would be advantageous to have an overview of the case set up by the parties before the learned trial Judge.

The respondent in the present revision petition instituted a suit seeking possession of a strip of land said to have been forcibly taken into possession by the present petitioner and annexed the same with his plot of land on which a three storeyed building is constructed by the petitioner/defendant. The respondent/plaintiff also prayed for grant of permanent injunction/decree restraining the petitioner/defendant from interfering with rest of the land owned by the respondent/plaintiff. The respondent/plaintiff’s case before the learned trial Judge was that a plot of land measuring 12 marlas along with house standing thereon was transferred by its owners in favour of the respondent/plaintiff by a sale deed executed and registered on 30.4.2001. The respondent/plaintiff insisted that towards the southern side of the aforesaid property an open strip of land measuring 7’ × 25’ was also transferred by the owners in favour of the respondent plaintiff. The respondent/plaintiff pleaded that the petitioner/defendant encroached upon a strip of land measuring 3½’ × 25’ out of the aforementioned 7’ × 25’ open land in 1979-1980. The respondent/plaintiff pleaded that he became aware of the encroachment made by the petitioner/defendant only when the previous owner of the property came from Bombay to Jammu and informed the respondent/plaintiff about the same. The petitioner/defendant has since filed his written statement in the main suit denying the arguments made in the plaint and even issues have been settled and some evidence recorded.

3. The respondent/plaintiff during the trial in the main suit on 28.5.2008 filed an application for appointment of commissioner for making measurement of the land in actual possession of the petitioner/defendant on which a three storeyed building has been constructed. The case set up by the respondent/plaintiff in the application was that the matter in controversy in the suit would be easily decided by appointing a commissioner for making the measurement of the land in possession of the defendant/petitioner. It was insisted that the court had ample powers to issue direction and get the property measured.

4. The application was resisted by the petitioner/defendant in his objections filed on 4.10.2008 on the grounds that the petitioner/defendant had not forcibly taken possession of the strip of land measuring 3-1/2’ x 25’as averred in the plaint and that the petitioner/defendant was in possession of a plot of land on the spot including the strip of land in question in his own right as a tenant thereof and taken over its possession under sale deed executed in his favour by the owners on 4 May 1991. The effort, according to the petitioner/defendant, to get commissioner appointed was only to create evidence in support of the case set up by the respondent/plaintiff before the trial court. The petitioner/defendant reiterated his stand that the subject matter of the suit rightfully belonged to the petitioner/defendant and insisted that the commissioner cannot be appointed to collect the evidence for either of the parties.

5. The learned trial judge on perusal of the pleadings was not impressed by the case set up by the petitioner/defendant in opposition to the application for appointment of commissioner. Learned trial judge after noticing and analyzing Order 26, Rule 9 CPC against the backdrop of the judicial pronouncements on the subject allowed the application appointing Govind Raina, advocate, as commissioner and asked the commissio