RAMAVTAR Vs. SHIVBHAJAN

JUDGEMENT

(1.) HE is heard on the question of admission. The petitioners/defendants have filed this petition under Article 227 of the Constitution of India being aggrieved by the order dated 5/8/2013 passed by 2nd Civil Judge Class -11, Laundi, Distt. Chhatarpur in Original Civil Suit No. 81 -A/2012 whereby their application filed under Order 26 Rule 9 of CPC for appointment of Commissioner and calling the report regarding actual possession of the disputed property at the initial stage of the suit has been dismissed.

(2.) . Petitioners' counsel after taking me throw (sic: through) the averments of the petition along with papers placed on record and the impugned order argued that there is basic dispute between the parties regarding map of the disputed property and on account of that the dispute of possession has come into existence. In continuation of the same, by referring some paragraphs of the plaint, counsel submits that the respondent No. 1 /plaintiff has stated himself to be in possession of the disputed property while in the written statement, the petitioners have denied the same with a pleading that they are in possession of disputed land and in such premises to resolve such controversy between the parties and also to clarify that which party is in actual possession at the site of the property, the impugned application was filed on behalf of the petitioners for appointment of Commissioner to call the report. In the available circumstances, the trial Court ought to have allowed such application and called the report but the application has been dismissed under the wrong premises. In support of his arguments, he also placed reliance on earlier three decided cases of by this Court in the matter of Kamal Singh and another Vs. Roop Singh (since dead) through LRs. and another reported in 2011(3) MPLJ 333, in the matter of Shivnarayan Vs Koshalya Bai reported in 2012 (2) MPWN 139 and in the matter of Beejanwala Talukdar Vs Radha Krishna Rai reported in 2012(3) MPWN 168 and prayed to allow his application by setting aside the impugned order by admitting and allowing this petition.

(3.) HAVING heard learned counsel for the petitioners, keeping in view his arguments, I have carefully gone through the averments of the papers placed on record along with the impugned order so also the cited cases.