ORDER

By the present petition, the petitioner has challenged the order dated 3.1.2024 passed in C.S. No.6-A/2019 by IInd Civil Judge, Senior Division, Narsinghpur whereby the objections submitted by the petitioner upon Commissioner's report dated 24.8.2023 were rejected by the learned trial court.

2. Learned counsel for the petitioner submits that upon the application moved by the petitioner/plaintiff under Order 26 Rule 9 of the CPC, the writ of commission was issued by the learned trial court and the Commissioner conducted the measurement and demarcation of spot and submitted his report. At the time of measurement of spot, the petitioner raised objection that the Commissioner has not measured the property on the ground and the same has been measured from the roof and therefore, the measurement is not correct. The Commissioner has noted down objection raised by petitioner on spot memo itself. On the report of the Commissioner, the petitioner filed an objection and thereafter the Commissioner was examined in the court and was cross examined by the petitioner also.

3. Learned trial court by impugned order dated 3.1.2024 rejected the objection raised by the petitioner upon Commissioner's report mainly on the ground that the plaintiff himself prevented Commissioner from conducting measurement at ground level and therefore, the Commissioner's report cannot be rejected.

4. Learned counsel for the petitioner further submits that it was the duty of Commissioner to comply with the direction issued by the trial court and the Commissioner ought to have measured the property from the ground level and if the garbage was available at the spot, the Commissioner must have asked the authorities to remove the garbage and thereafter the measurement could be done. He prays for setting aside the order passed by the trial court on 3.1.2024 and rejection of the Commissioner's report.

. Per contra, learned counsel for the respondent/defendant supported the order passed by the trial court on 3.1.2024 and submitted that plaintiff himself prevented the Commissioner to measure plot in dispute at the ground level alleging that the same is not possible due to availability of garbage there and therefore, the plaintiff cannot raise objection on Commissioner's report. He further submits that order passed by the trial court is in accordance with law and the same is not liable to be interfered with by this Court.

6. Considering the arguments advanced by learned counsel for the parties and the documents on record, it appears that the writ of commission was issued upon the application preferred by petitioner himself. The suit has been filed on the allegation of encroachment by defendant on the land of petitioner admeasuring 800 sq. ft. and the prayer for appointment of Commissioner was made for the purpose of ascertaining actual position of spot. It is not in dispute that at the time of measurement, the petitioner himself raised objection that Commissioner has not measured the property at the ground level due to availability of garbage and measurement was carried out from the roof of structure. The Commissioner has already been examined in the case and was cross examined by the plaintiff also. At this stage, there was no occasion of the trial court to decide the evidentary value of the Commissioner's report as both the parties are required to prove their case by leading evidence and the evidentary value of the Commissioner's report could have been examined at the time of deciding the suit finally.

7. In view of above, the present petition is disposed of and the impugned order is set aside with a direction to the trial court to consider the evidentary value of the Commissioner's report at the time of deciding the suit finally after permitting both the parties to address the court in respect of Commissioner's report and at the same time, the court will also consider the statement of the Commissioner recorded in the cou