IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 144 of 2010 Date of decision: 23.8.2010 Vijay Kumar …. Petitioner Versus Pawan Kumar and others. ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No For the petitioner: Mr.A.K.Vashisht, Advocate. For the respondents: Neel Kamal Sharma, Advocate. _____________________________________________ Deepak Gupta, J.(Oral) 1. This petition under Article 227 of the Constitution of India is directed against the order dated 19.4.2010 whereby the application filed by the petitioner under 26 Rule 9, CPC was rejected. 2. According to Sh.Adarsh Vashisht, learned counsel for the petitioner, the petitioner filed a suit for possession, partition and permanent prohibitory injunction in respect of the suit land. Alongwith the suit, an application under Order 26 Rule 9, CPC was filed praying that a Commissioner be appointed to 2 determine which party is in possession of what area of land. This application was rejected. Hence this petition. 3. In a suit for partition before passing a preliminary decree, the Court will only determine the shares of the parties and thereafter, on the basis of the determined share will order partition of the property and obviously at that stage, if the court feels necessary, it may appoint a Commissioner to determine whether partition is possible by metes or bounds or not. However, the provisions of Order 26 Rule 9, CPC cannot be invoked at this stage to create evidence for any party. There is no boundary dispute between the parties and the question as to whether any of the co-sharers is in possession of property in excess to his share has to be considered at the stage of actual partition of property and before final decree is passed. 4. The petition is accordingly rejected. No order as to costs. August 23, 2010 ( Deepak Gupta ) (m) Judge