Ashok Singh and Others vs Sujan Singh and Others

Permod Kohli, J.—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.

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 (UOI) and Another

Vs. Kripal Industries, and case titled Basanta Kumar Swain Vs. Baidya Kumar Parida and Others, .

Mr. S.D. Sharma, learned counsel for respondents has on the other hand defended the order passed by the trial court and submitted that

keeping in view the controversy involved in the suit where both the parties claim possession of different Khasra Numbers. It was only a just and

proper course available to the court. He has argued that the order impugned is discretionary in nature and cannot be interfered with in exercise of

revisional jurisdiction.

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.

In the aforesaid case, in a suit for permanent prohibitory injunction in respect of land measuring 8 kanals comprising Khasra No. 1436 located

at Onehgam Sonagam, Tehsil Bandipora, both the parties claimed possession of the suit land. The Commissioner appointed by the trial court was

required to demarcate the land and report regarding possession existing on spot. Admittedly, such a recourse amounts to authorizing the

commission to determine, who was in possession of the suit land. The facts of the present case are clearly distinguishable. In the present case, both

the parties claimed possession of the property of different khasra numbers. The case of the defendants before the trial court was that the property,

subject matter of sale deed /suit falls in Khasra No. 232, though khasra No. 233 has been indicated in the sale deed.

Under these circumstances, the trial court thought it advisable to issue commission to demarcate, whether the suit property falls in Khasra Nos.

232 or 233. The trial court has not directed the commission to decide the question of possession at all. There is another aspect as discussed in

(2002) KLJ 270 where the parties are entitled to establish their case by leading evidence. Normally, the court should not collect evidence/material

to establish the case of any of the parties. In the present case, both the parties claimed their possession in different khasra numbers. Whether the

suit property falls in Khasra No. 232 or 233, can only be determined by Nishandehi by a Revenue Officer and parties of their own, cannot

establish this fact by any other evidence. Therefore, facts of the case reported in (2002) KLJ 270 are distinguishable. The trial court has passed a

reasoned order indicating the circumstances for issue of commission.

I do not find any infirmity in the impugned order. The Revenue Officer after Nishandehi, has to submit'report to the court. Report of the

Commission, is only a piece of evidence in terms of Order 26 Rule 9 of the Code of Civil Procedure. The parties have a right to dispute the report

or rebut the same. Its evidenciary value can always be challenged.

In view of the above, this petition is dismissed being without any merit. Record of the trial court shall be sent back.