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IN THE HIGH COURT OF MADHYA PRADESH
V.K. AGRAWAL, J.
Rajaram Rai - Appellant
Versus
Noor Mohammed - Respondent
C. Reven. No. 2439 of 1998 (J)
Decided on : 09-02-2001
The plaintiff-petitioner has filed a suit for permanent injunction complaining of encroachment by the respondent on his land. The plaintiff-petitioner also tiled an application under Order 26 Rule 9 of CPC for appointment of Commissioner to inspect the spot and after measurement to submit his report about the controversy in suit. That application has been rejected by the trial Court by the impugned order.
The learned trial Court appears to be of the opinion that the suit is pending since long and since the controversy between the party can be decided without demarcation, appointment of Commissioner is not necessary.
Learned counsel for the petitioner submits that the plaintiff-petitioner claims the disputed property to be his own while the defendants are claiming it to be theirs. This controversy cannot be properly adjudicated unless there is spot inspection by the Commissioner and measurement by him. It has further been submitted that the dismissal of his prayer for appointment of Commissioner would cause serious prejudice to his case.
After considering the contentions and the nature of controversy between the parties, it appears just and proper that a Commissioner be appointed who should be directed to take measurement and to submit his report about the situation of the spot. Therefore, the revision is allowed. The impugned order rejecting prayer for appointment of Commissioner is set-aside. It is directed that the trial Court shall appoint a Commissioner as per law and rules for inspecting the spot and submitting his report after measurement to be carried out in accordance with the directions given by the trial Court in that regard. Commissioner's expenses shall be borne by the plaintiff-petitioner.
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