MANISH AGRAWAL Vs. PRABHANSHU RANJAN SHUKLA 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. 39 -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 Court below by the impugned order has dismissed the application by holding that in a connected suit i.e. C.S. No. 35 -A/2013 a similar application filed by the petitioner has already been rejected by order dated 2 -8 -2013 on the ground that the suit is being adjourned repeatedly since 3 -10 -2013 for the plaintiff's evidence but he has not produced his witnesses and that the grounds on which the petitioner is seeking issuance of a commission can be proved by him by adducing evidence and that he has not placed anything on record to indicate that it is impossible to do so without issuance of a commission. It has also been held that a commission cannot be issued for collecting evidence.