ORDER

Learned counsel for the petitioners is heard on the question of admission.

2 . By this petition preferred under Article 227 of the Constitution of India, the petitioners / plaintiffs have challenged the order dated 2/12/2023 passed by the trial Court whereby their application under Order 26 Rule 9 of the CPC for appointment of a local Commissioner has been rejected on the ground that by way of Commission the boundaries of the property in possession of the parties cannot be directed to be ascertained and direction for obtaining a report as to which party is in possession of which portion of the property would amount to collection of evidence which is not permissible.

3. The suit has been filed by the plaintiffs for partition of their 1/3rd share in the suit property hence it is apparent that no partition has been effected between the parties though it is contended that they are in separate possession of their respective portions. In the application under Order 26 Rule 9 of the CPC the plaintiffs had prayed for appointment of a local Commissioner to ascertain as to what area of the properties of the parties have been constructed, as to which party is in possession of which land, as to over which part construction has been made by defendant No.1 and the manner in which the way is in existence on the spot. In this petition reliance has been placed by the plaintiffs on Suneel Prakash Sharma V/s. Vivek Kumar Ruthiya, 2022 (I) MPWN 39 and Jaswant V/s. Dindayal, 2011 (2) MPLJ576. 4. It is trite law that a Commission cannot be issued for the purpose of ascertaining the factum of possession of a party to the suit as the same would amount to collection of evidence which is impermissible. It is for the parties to lead evidence before the Court to establish their possession over the disputed property and cannot seek aid of a Commission in that regard. Likewise Commission cannot be issued for collecting evidence as to over what property construction of a party has been made and the manner in which the properties are situated. Thus on the basis of the prayer as made by the plaintiffs in their application under consideration the Commission could not have been issued hence the trial court has not committed any error in rejecting the application of the plaintiffs.

5 . Moreover it is seen that the suit is at the initial stage itself and application for issuance of temporary injunction is under consideration. It appears that the issues have not been framed. After the evidence of the parties, if the plaintiffs feel that issuance of a commission is necessary it would be open for them to make an application in this regard with a prayer which can be legally made under the provisions of Order 26 Rule 9 of the CPC and if the same is made shall obviously be decided by the trial Court on its own merits. However, for the present, in view of the nature of Commission sought to be issued by the plaintiffs, their prayer in that regard cannot be accepted and has rightly been turned down by the trial Court.

6. Thus in view of the aforesaid, I do not find any merit in this petition. The impugned order is affirmed. The petition is dismissed. (PRANAY VERMA) JUDGE SS/- JUDGE SS/-