O R D E R

Heard on the question of admission.

The petitioners (defendants ) have filed the present petition being aggrieved by the order dated 10.12.2020 passed by the First Civil Judge, Class-I, Narsinghgarh,

District Rajgarh (M.P.) in civil suit No.148-A/2014.

2.

(i) The respondent ( plaintiff) has filed a suit for declaration of title and removal of encroachment by the defendants. According to the plaintiff, defendants no.1 to 7 are engaged in a business of sale of sand and defendants no.2 to 5 are members of one family. Plaintiff is working as a teacher in the education department and claiming of land bearing survey no.741 are 1.632 hectare and survey no.738 area 1.833 hectare by the virtue of the sale deed dated 30.04.1988 and therefore her name had been mutated in the revenue record on 30.09.1986. The plaintiff has alleged in the plaint that defendant no.1 has illegally encroached 1500 square feet of the aforesaid land and raising a construction. She has further alleged that on 04.10.2012 the defendant no.7 also tried to encroach the land for which she has reported to the police . On the basis of the cause of action, she has filed a suit for declaration of title and possession of the encroachment in the year 2014. The defendants have filed the written statement as well as the counterclaim on 24.04.2015.

The trial Court has decided the suit in the year 2016

thereafter, a First Appeal No.28/A of 2016 was filed in which vide dated 29.06.2019 the suit was remitted back to the trial Court for fresh adjudication after framing the issues. The civil suit was re-registered on 03.07.2019.

(ii) The plaintiff has filed an application under Order 26 Rule 9 of the Code of Civil Procedure, 1908 seeking inspection of the spot by appointing a commission. Vide order dated 05.10.2019 the learned Court has appointed Nayab Tehsildar, Kurawar as commissioner and directed him to inspect and submit the report.

(iii) Nayab Tehsildar appointed and directed Revenue Inspector (Circle-III) Kurawar to conduct a spot inspection. The Revenue Inspector issued a notice to the parties and conducted the spot inspection and submitted its report to the Nayab Tehsildar. In turn, the Nayab Tehsildar vide letter dated 27.11.2019 has forwarded the report to the Court.

(iv) The petitioners have submitted an objection that when the trial Court has directed the Nayab Tehsildar as a commissioner for spot inspection then he ought to have conducted the spot inspection itself and submitted the report. The Nayab Tehsildar instructed the Revenue

Inspector to do the spot inspection and submit the report. The respondents have also submitted an objection to the report submitted by the Nayab Tehsildar. The aforesaid application was opposed by the plaintiff and vide order dated 10.12.2020 the learned Civil Judge has turned down the objection and hence, the present writ petition before this Court.

3.

counsel for the petitioners and perused the record.

4. learned Civil Judge has appointed Nayab Tehsildar as commissioner for submitting a report after spot inspection but he has dedicated the work of spot inspection to Revenue Inspector (Circle-III), Kurawar who inspected after issuing notices to the parties. After the receipt of the notice the petitioner no.1 did not appear at the time of the inspection but petitioner no.2 who is the nephew of the petitioner no.1 appeared and in his presence the inspection was carried out and the report was submitted.

5. investigation to be requisite or proper for the purpose of clarification or elucidating any matter in dispute may issue person him to make an investigation and submit a report to the Court under Order 26 Rule 9 of the Code of Civil Procedure, 1908. Order 26 Rule 10 of Code of Civil Procedure,1908 provides that the evidence taken by the Commissioner shall be evidence in the suit and shall be part of the record and with the permission of the Court the parties or suit may examine the commissioner personally in open court. Under Sub-rule 3 of R