KANHAIYALAL KUSHWAH Vs. PARWATIBAI

JUDGEMENT

(1.) COUNSEL heard. In a civil suit instituted by the non -petitioners No. 1 to 6 in respect of agricultural suit land · for declaration and permanent injunction an application under Order 39 Rules 1 and 2 C.P.C. was filed. In support of the application plaintiffs filed affidavits. The petitioner -defendant opposed the application and stated that the plaintiffs are not in possession, there are no permanent constructions, nor the crops are standing on the fields. Therefore, the plaintiffs moved an application under Order 26 Rule 9 CPC for local investigation. That was opposed. The trial Court after hearing parties allowed the application and appointed the commissioner for local inspection to submit a report in accordance with directions contained in clauses (a) to (c) of para 12 of the impugned order. The petitioner aggrieved of this order, in particular direction contained in clause (c) of para 12, whereby the Commissioner was directed to submit a report as to which party is in possession of the suit land at the time of inspection and in what manner.

(2.) SHRI S.K. Jain, learned counsel submits that the object of the local inspection/investigation is not to collect evidence which can be taken in Court but to obtain evidence which from its peculiar nature can only be had at the spot. The purpose is merely to assist the Court. Counsel pressed into service a decision of the Supreme Court in case of Padam Sen v. State of U.P. (AIR 1961 SC 218) and three decisions of this Court in case of Laxman v. Ramsingh (1982 MPWN Note 25), Rashid Ali v. Kadam Khan (1983 (II) MPWN SN 403), and Geeta Mandir Trust v. Ramchandra (1988 (II) MPWN SN 203) and a decision of the Calcutta High Court in case of Institution of Engineers v. Bishnu Dada (AIR 1978 Calcutta 296). True, a Commissioner cannot be appointed for local investigation to collect evidence in respect of possession of the parties. However, it is clear from the order that the Court has not directed the collection of evidence, but, the local investigation is directed about the factual position as to situation of the suit lands, crops and the construction, if any, standing on the land, and as to who is found in possession at the time of inspection. The Commissioner is not directed to give a finding about possession, and if such a finding is given that would not be binding on the parties and on the Court. After the report of the Commissioner is filed the trial Court would decide the application for injunction after hearing parties. Accordingly, the revision is disposed of with the aforesaid observations. No costs.