BHANWARLAL Vs. RATANBAI

JUDGEMENT

(1.) The petitioner has filed the present petition under Article 227 of the Constitution of India, challenging the order dated 26.10.2018 passed by the Civil Judge Class-II, Tongkhurd, District-Dewas in Civil Suit No.19-A/2018, thereby rejected the application preferred by the petitioner under Order 26 Rule 9 of the C.P.C.

(2.) The petitioner/plaintiff had filed a civil suit for declaration of title as well as permanent injunction. The defendants/respondents have filed their reply and denied the allegations made in the plaint. The main dispute between the parties is regarding the road. As per the respondents, the said land is used as a road by them at the time of their ancestors. As there is a dispute between the parties regarding the road, the petitioner has filed an application under Order 26 Rule 9 of the C.P.C. The respondents have filed the reply of the application and the court below has dismissed the said application on the ground that the commission cannot be appointed for collecting the evidence. Being aggrieved with the said order, the petitioner has filed the present petition.

(3.) Learned counsel appearing for the petitioner argues that, the court below had erred in dismissing the application preferred by the petitioner under Order 26 Rule 9 of the C.P.C. He submits that in the present case, as there is a dispute regarding situation of the road at the adjoining land, a Commission is necessary for deciding the dispute between the parties. Under these circumstances, he prays that, the petition be allowed.