ASHOK SINGH Vs. SUJAN SINGH

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 1.5.2003 passed by Sub - Registrar( Munsiff), Jammu allowing the application of the plaintiffs/respondents for issue of Commission for Nishandehi of the land. Plaintiffs/respondents filed a suit for injunction claiming possession of land measuring 29 + marlas comprising Khasra No. 233. The trial court directed maintenance of status quo on spot by interim injunction. Defendants filed their written statement and claimed possession in Khasra No. 232. On application filed by plaintiffs/respondents for Nishandehi of the land, whether the same falls in Khasra No. 232, the trial court passed the impugned order, ordering issuance of Commission. Tehsildar Settlement, Jammu has been directed to demarcate the suit land as per revenue record and submit report to the court. It is this order, which has been challenged by the defendants/petitioners. The main ground for challenge is that, the court has become a party to the collection of evidence on behalf of the plaintiffs by appointing Commission for determining the possession on spot.

(2.) ACCORDING to Mr. B.S. Slathia, learned counsel for petitioners such a recourse is impermissible under Order 26 Rule -9 of the Code of Civil Procedure. It has been further argued that the court is providing assistance to the respondents to collect evidence, which is likely to prejudice the claim of the petitioners. It has also been urged that it is for the parties to prove and establish their respective possession over the suit property and direction of the court to demarcate the possession through impugned order, is contrary to law. Mr. Slathia has relied upon judgment of a Co -ordinate Bench of this Court in case Mohd. Yousuf Lone v. Ahmad Lone and Anr., 2002 KLJ 270, case titled Union of India and Anr. v. Kirpal Industries, AIR 1998 Rajasthan 224 and case titled Basanta Kumar Swain v. Kumar Parida and Ors., AIR 1989 Orissa 118.

(3.) I have heard learned counsel for the parties. It is true that a co -ordinate bench of this court in case titled Mohd. Yousuf Lone v. Ahmed Lone and Anr., 2002 KLJ 270 while considering scope or Order 26 Rule 9 CPC held that the court cannot delegate its judicial functions to a commission and set aside the order passed by the trial court whereby Patwari Halqua was asked to demarcate the land and report regarding actual possession existing on spot.