ORDER

The present petition under Article 227 of the Constitution of India has been directed against the order dated 15.01.2021 passed by First Civil Judge Class-2 Bhind in Civil Suit No.19-A/2016, whereby application filed under Order 26 Rule 9 CPC for getting the land bearing survey no.1274 which belongs to the present respondent was sought to be locally investigated by issuance of a Commission alleging that the present respondent had encroached upon a part of the land of the petitioner/plaintiff and Government land bearing survey no.1272. Brief facts of the case are that the present petitioner who is a plaintiff had preferred a suit bearing no.19-A/2016 for permanent injunction against present respondent/defendant for restraining him from raising any construction over the land situated in between the plot of the petitioner/plaintiff and survey no.1274 as the rights of the present petitioner/plaintiff were getting affected.

A written statement has been filed in the matter on behalf of the present respondent/defendant, wherein the averments made by the petitioner/plaintiff had been denied in toto. In the written statement it has been averred that the land which has been made the center point of dispute is a Government land, as well as the land bearing survey no.1274, admittedly, belongs to respondent/defendant, thus, the prayer for permanent injunction in the suit is baseless and prayer for dismissal of the suit was made.

The present status of suit is that issues are yet to be framed and evidence is yet to start and prior to this the present petitioner/plaintiff had moved an application under Order 26 Rule 9 CPC for conducting physical inspection of the spot and a request was made to call for the report with regard to encroachment made by the respondent over the plot of the petitioner as well as public path. A reply was filed to the said application and the learned Trial Court after considering the rival contentions had rejected the said application dated 15.01.2021. Aggrieved by the aforesaid order, the present petition has been filed.

Learned counsel for the petitioner has argued that the present respondent/defendant had purchased a plot bearing survey no.1274 through sale-deed and to the south side of the said survey number there is a Government land bearing survey no.1272 which is an abadi land over which the house of the present petitioner/plaintiff has been standing for ages and adjacent to his house there is a public path and the grievance of the petitioner arose when defendant while raising construction of his house on survey no.1274 not only encroached the public path, but had also encroached the plot of the petitioner.

It was further submitted that since it was the matter of encroachment by the present respondent/defendant, he had moved an application under Order 26 Rule 9 for elucidating the factual boundaries of the plots and the encroachment made by the respondent/defendant and since the aspect of encroachment could only be ascertained by issuance of Commission by making local investigation, it was incumbent upon the learned Trial Court to have allowed the said application and direct the Commissioner so appointed to conduct the spot inspection and submit its report, but instead thereof the application itself has been rejected which is per se illegal.

It was further submitted that learned Trial has misdirected itself in holding that under the garb of the aforesaid application the petitioner/plaintiff wants to collect evidence which is converse to the very pleadings of the petitioner/plaintiff and, thus, the order being perverse deserves to be set aside and suitable directions are required to be issued to the learned Trial Court to appoint a Commissioner and conduct a local investigation to ascertain the factum of encroachment made by the present respondent/defendant.

Per contra, Shri Dharmendra Rishishwar appearing for the respondent while supporting the order passed by the learned Trial Court submitted that no i