ORDER

Arguments heard.

The petitioner / plaintiff has filed this petition under Article 227 of the Constitution of India challenging an order dated 25.06.2022 passed in RCS No.A-19/2019 by Additional Civil Judge, Tehndukheda, District Narsinghpur (MP) to the Court of 1st Civil Judge (Junior Division) Tendukheda, District Narsinghpur (MP).

By the aforesaid order, learned court below has dismissed the application under Order 26 Rule 9 r/w Section 151 of C.P.C. filed by the petitioner / plaintiff, on the ground that commission cannot be issued for collection of evidence but at the same time, the learned court below has held that the dispute between the parties is in relation to the boundaries and at the same time, the petitioner / plaintiff has filed the suit for declaration of title and for removal of illegal construction.

Learned counsel for the petitioner submits that learned court below has committed error in dismissing the application under Section 26 Rule 9 CPC for issuance of commission on the ground that as the matter involves dispute of boundaries and it can be decided with the help of khasra entries so collection of evidence in the form of issuance of commission cannot be allowed while it is already settled law that if there is any boundary dispute between the parties then issuance of commission under Order 26 Rule 9 CPC ought to be issued and it will not amount to collection of evidence.

In turn, learned counsel for the respondents advanced the arguments in support of the impugned order and contended that the learned court below has not committed any error apparent on the face of record and prayed for dismissal of the petition.

I have heard learned counsel for the parties at great length and perused the material available on record.

The plaintiff / petitioner herein has filed a suit for declaration of title, permanent injunction and also for removal of encroachment alleged to have been made by the respondents no.1 and 2 on the land purchased by the petitioner from Sujan Singh vide registered sale deed dated 11.08.2003. Initially, the father of the respondents no.1 and 2 sold the suit property bearing khasra no.743/8, P.H.No.28. No. Bandobast 198, Ad. 0.008 hectare to one Sujan Singh through registered sale deed dated 10.05.1991. Thereafter, Sujan sold the said land to the petitioner and after purchasing the suit land, mutation of the petitioner was also effected in the revenue records and possession was also handed over to him.

Order 26, Rule 9: Commissions to make local investigations:--

"In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesnt profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."

A bare perusal of Order XXVI Rule 9 of CPC shows that the power under the said provisions can be exercised in order to ascertain the correct factual position, if the same is not ascertainable on the basis of the oral and documentary evidence.

On perusal of the order under challenged in this petition, it is found that indeed the dispute is with regard to demarcation of the boundaries. There is no agreed map between the parties and there is major disagreement with regard to boundaries. The aforesaid provision of under Order 26 Rule 9 of CPC, nowhere suggests for appointment of commissioner for collection of evidence regarding possession, meaning thereby, by appointment of Commissioner, evidence for possession cannot be permitted to be collected.

As earlier alluded, the court below has passed a well reasoned and speaking order warranting no interference under Article 227 of the