2024:CGHC:31631 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 716 of 2024

1 - Narayan Rajwade S/o- Chandrabali Rajwade Aged About 56 Years. 2 - Amit Rajwade S/o. Narayan Rajwade, Aged About 32 Years

3 - Anil Rajwade S/o Narayan Rajwade Aged About 28 Years.

Petitoners are R/o Village Mahgawan P.S., Po. And Tahsil. Surajpur, District-

Surajpur, (C.G.).

... Petitioners versus

1 - Gul Mohammad S/o Late Mohamad Wali Aged About 55 Years R/o Village Mahgawan P.S. Po. And Tahsil. Surajpur, District- Surajpur, (C.G.). 2 - State Of Chhattisgarh Through Collector Surajpur, District- Surajpur ( C.G.).

... Respondents.

For Petitioners : Ms. Priyanka Mehta, Advocate.

For State/Respondent : Shri Rajeev Bharat, GA.

Hon'ble Shri Justice Deepak Kumar Tiwari

Order On Board

21/08/2024

1) This petition has been filed under Article 227 of the Constitution of India assailing the legality and validity of order dated 06.08.2024, whereby application preferred by Respondent No.1/plaintiff under Order 26 Rule

9 CPC was allowed.

2) Brief facts of the case are that plaintiff/Respondent No.1 filed a civil suit for declaration of title, possession and permanent injunction with respect to Khasra No.1078/1 admeasuring 0.121 hectare land situated in village Mahagawan, Tahsil Surajpur, District Surajpur stating, inter alia, that the subject land was allotted on lease by the State Government to his father namely, Wali Mohammad in ‘Singh Dev Yojna’ on 03.09.1966. In the reply to application under Order 39 Rules 1 & 2 CPC, present petitioner had disputed the identity of the land stating that subject property for which the suit has been brought by the plaintiff is situated at a distance of 200 metre (approx.) from the alleged subject property. In these circumstances, plaintiff has filed an application under Order 26 Rule 9 CPC for identifying the subject land by appointing the Commissioner, which was allowed. Hence this petition.

3) Learned counsel for the petitioners submits that the trial Court has grossly erred in allowing the application. It is well established that for collection of evidence a commission cannot be issued. She also submits that the Commission also cannot be issued for ascertaining actual possession in disputed property and that which of the party is in possession of the property is beyond the scope of Order 26 Rule 9 CPC. She places reliance in the matter of Dharam Singh and another v. Deenanath and others reported in {2019 (4) MPLJ 32} and referred to para 10 to 12, which read as under:-

“10. The learned Appellate Court while reversing the judgment and decree passed by the Appellate Court and remanding the matter to the trial Court has not set aside the findings of the trial Court, on the contrary, has allowed the application under Order 26, Rule 9 of Civil Procedure Code commission is necessary for finding the shares of each person. The learned trial Court has observed that it is not clear that on how much area of araji No. 202, parties are in possession, therefore, he has directed for issuance of commission. It is a settled position of law that commission application under Order 26, Rule 9 of Civil Procedure Code cannot be allowed for commission for collection of evidence. This Court in the case of Chunnilal vs. Ramchandra, reported in 2002 (1) M.P.W.N. 105 has held that "the commission cannot be issued for ascertaining actual possession in disputed property. The evidence cannot be collected by the issue of commission. Issue have to be decided by the Court itself on the basis of evidence available on record." The Hon'ble Court has relied upon the judgment in the case of Babu Khan vs. Kapatan Singh, (1980) 2 MPWN 261, this Court in the similar circumstances has held as under :-

"This 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