MANISH AGRAWAL Vs. BASANT KESHAV PATASKAR AND ORS.

JUDGEMENT

(1.) THE petitioner has filed this petition being aggrieved by the order dated 19 -11 -2014, passed by the Third Additional Judge to the Court of First Civil Judge Class -I, Sehore in C.S. No. 40 -A/2013 by which the petitioner's application under Order XXVI Rule 9 of the C.P.C. has been rejected.

(2.) THE petitioner had filed the aforesaid application in a suit filed by the petitioner for declaration and injunction in respect of agriculture land comprising of Survey No. 252/2, area 8.60 acres, situated at village Sonkachh, Tahsil Shyampur, District Sehore. In the said suit the petitioner had filed an application under Order XXVI Rule 9 of the C.P.C. praying for appointing a commission to determine as to whether the disputed land alongwith 30 -35 acres of land comprises of a farm house which is fenced with barbed wires and is restricted by a gate, whether a permanent structure stands on the said land, whether a tube well and water tank exists on the land and whether the area of 8.60 acres of land has been divided into pieces of land comprising of 1.00 acre each.

(3.) THE learned counsel appearing for the petitioner submits that the issuance of commission is necessary on account of the fact that the dispute in the matter relates to demarcation and that the plaintiff would not be able to prove his case without the report of the commissioner. It is further stated that the order passed in C.S. No. 35 -A/2013, dated 2 -8 -2013 rejecting the petitioner's application under Order XXVI Rule 9 of the C.P.C. could not have been taken note of by the Court below as that order has been passed in a different suit in which the petitioner was defendant.