The appointment of a Local Commissioner under Order 26 Rule 9 CPC does not permit the collection of evidence, only elucidation of disputes.

This petition under Article 227 of the Constitution of India has been filed against the order dated 7-1-2014 passed by Civil Judge, Class 1 Karera, Distt. Shivpuri, in C.S. No.13- A/2013, by which the application filed by the petitioner under Order 26 Rule 9 C.P.C. for appointment of Local Commissioner was allowed with a further direction that the Local Commissioner would also submit his report with regard to the objections raised by the respondent in his reply to the application.

The necessary facts for the disposal of the present petition in short are that the petitioner has filed a suit for permanent injunction in respect of suit plot admeasuring 35x36 sq. meters in survey no.20001/ area 0.12 hectare situated at Tila Road Chouraha, National Highway, Tahsil Karera, Distt. Shivpuri. It was pleaded that the plot in question is on the North of National Highway and now the defendants are trying to dispossess them.

The respondents filed their written statement and denied plaint averments.

The plaintiffs/petitioners filed an application under Order

26 Rule 9 C.P.C. seeking for appointment of Commissioner to seek report on the following issues :

tkap fcanq

1- oknhx.k dh nqdku ds mRrj fn'kk es Qksj ykbu ls fMokbMj rd chp dh nwjh fdruh gS rFkk jk"V~h; jktekxZ es fdruh Hkwfe vkrh gS rFkk nqdku ls Qksjykbu jksM rd chp dh nqjh fdruh oknhx.k dk nqdku dk njoktk Qksj ykbu dh rjQ fLFkr gS ;k ugh A

2- iqjkus Vhyk jksM ls yxdj izfroknh dza 1 dh nqdkuksa dh ihNs [kqyh o iqjkuk dPpk edku fLFkr gS ;k ugh A

3- ;g fd izfroknh dza 1 dh nqdkuksa ls Qksj ykbu rd dh chp dh nwjh fdruh gSA

4- ;g fd mDr ekSds dh fLFkfr dh tkap gks tkus ls izdj.k ds fujkdj.k es tkap fjiksZV lgk;d gksxh rFkk i{kdkjksa dks U;k; fey ldsxkA izkFkhZ dfe'uj Qhl tek djus dks rS;kj gSA The defendants filed their reply and submitted no objection for appointment of Commissioner, but prayed that the Commissioner should also be directed to submit his report on the following issues also :

izfroknhx.k dh vksj ls vkosnu dk mRrj izLrqr djrs gq, lhekadu djk;s tkus es lgefr O;Dr dh xbZ gS vkSj ;g ys[k fd;k x;k gS fd tkap ds fcUnq es Qksj ykbu ls yxdj fdl losZ ua dh fdruh Hkwfe gS rFkk oknhx.k fdruh Hkwfe es ekfyd gS o mudk edku o nqdku fdrus jdos ij cuk gqvk gS rFkk fdruk jdck 'kkldh; Hkwfe ij cuk gS o fdruk Lo;a ds ij cuk gS ds rF;

dh Hkh tkap djkbZ tkuk vko';d gSA By the impugned order, the Trial Court allowed the application and appointed the Commissioner, but also directed that the Commissioner shall also submit his report with regard the prayer made by the defendants.

Being aggrieved by the order of the Trial Court, it is submitted by the counsel for the petitioner that while allowing the application, the Trial Court should not have directed the Commissioner to submit the report with regard to the prayer made by the defendants also, because it would amount to collecting evidence, which is not permissible.

Heard the learned Counsel for the petitioner. None appears for respondents though served.

It is well established principle of law that where the dispute is of boundaries, then the same can be resolved by appointing a Commissioner. Thus, in order to hold that there is dispute of boundaries, there should not be any claim of title over the land belonging to another party. Thus, except the question of identity of property, no other dispute should be involved. However, where a party to the suit claims that the area of his land has been wrongly reduced, then it cannot be said that it is a simple case of boundary dispute. Unless and until, the claim of the plaintiff that the area of his land has been reduced is established, no further relief can be granted to him. Thus, the present case, cannot be said to be a simple case of boundary dispute.

Order 26 Rule 9 CPC reads as under :

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 pr