SURYABHAN SINGH Vs. STATE OF M P

JUDGEMENT

(1.) BY this petition the petitioner has challenged order dated 21-7-2004 passed by the Vth Civil Judge, Class II, Rewa in Civil Suit No. 31-A/2003 rejecting the application of the petitioner filed under Order 26 Rule 9 C. P. C. for appointment of Commissioner.

(2.) THE Counsel for the petitioner stated that since the dispute pertaining to Khasra No. 538/3, 539/1 owned by the petitioner plaintiff suryabhan Singh who claimed to be in possession of the same. Respondent No. 2 Rambahore Singh challenged the possession in his written statement as well as the ownership and some portions of the said Khasra. Hence the petitioner filed an application for appointment of Commissioner which was essential under the circumstances to resolve the dispute. Relying on Nagpur LJ. 1953 Note 230, as well as Hari Charan Vs. Ghanshyam Das, M. P. W. N. 1988 (2) Note 23 and Vimla devi (Smt.) Vs. Smt. Shanti Bai, M. P. W. N. 1999 (1) Note 193 whereby this Court has held that when there was controversy raised regarding the plaint map and not resolved interference could be made by the Court and when there was no agreed map filed, identity of disputed land disputed, encroachment also denied the appointment of the local Commissioner was essential. Counsel also relied on basanta Kumar Swain Vs. Baidya Kumar Parida and others, AIR 1989 Orissa 118 and stated that the appointment of a Commissioner by the Trial Court in exercise of its power cannot be made to assist a party to collect the evidence where it can get the evidence itself. The object however is for elucidating any matter in dispute by local investigation at the spot. Where on the evidence of experts on record, the Court is satisfied that for appreciating the opinion of expert evidence, it should appoint an expert as Commissioner.

(3.) COUNSEL for the respondents on the other hand has stated that basanta Kumar supra itself cautions that where the Court is satisfied with the material available on record the power should not be exercised to create evidence. Whether a party is able to produce the desired evidence or not is dependent on the facts of each case. Relying on Chunnilal Vs. Ramchandra, m. P. W. N. 2002 (I) Note 105 whereby this Court has held that a commission cannot be issued to ascertain actual possession over disputed property, evidence cannot be collected by issuance of commission, that such an issue can be decided by the Court itself on the basis of evidence and further relied on another case babu Khan Vs. Kaptan Singh, 1980 (2) M. P. W. N. 261 where the Court had observed thus:-