IN 7)42 )fjGX COURT OF XIS flAKI AT BAN ‘ALONE I) TED T’Ib TG LT DAY I A1R7L 1998 flFOkE T12 FON’BL’ HR JUoTIC? H.N.NARDYF1b R.P NO.214/1998 Ktccb Sat a o. Saidam Lab, major r/ • Donabagatta viflao. K aaHobli,BhdravttiT .. Pt ne (By Sr.R Gopal—Mv.) a fl — Je saab c/• Kb 61* Lab, a major jriculturiat r/o. Donabagatta va.fltae Bhd za atli Tauk .. Respondent a a a a Civil ten-i vi ottj vi fa1°d uroer Secti. vi 115 of CP’ aoaii•t t c raez ated 12.12 97 a edi O.SNo9O/93 r It Veoft I d’ Cvil ude,andJYPC vtz. 10 i IPIXfi d 0 dtr I Rul 9 t ‘I ‘ba a t r ‘iii f i zt ) a f lwr a 2 a 2 a 0 R D E R Thi.s matter corning o for admiss ion is taken for final disposal by consent o.f the learned counsel appearing for the parties and disposed of. by this order, 2. In a suit for bare injunction the trial Court bas allowed an applicat on of the defendant for atpointment of a commissioner to measure the land. There is some background in this suit. The defendant has filed a suit for specific performance of the agreement allegedly executed by the plaintiff in his favour.agreeing to sell the suit schedule property. There is a dispute .tween the parties regarding possession. Therefore the plaintiff etirg hjs possession has filed suit against the defendant alleging interference with h..is possessi.on. 3, The defendant claia•.s delivery of posses•slon under Section 53A of the Transfer of Property Act, The Court has to decide whether the plaintiff is in possession as on the date of the suit, That is the only question , 3 , to be determined in the suit, ¼hen the suit has reached the final staoef the defendant has now filed this apolication seeking appointment of a Court Commissioner to meas:ure the suit property. it does not arise at all. The trial Court says that the identity of the property by a Commissioner does not amount to fishing in evidence, The learned Munsiff has not properly avore ciated the judqment of this Co.urt,rerted in AIR 1996 Kar,257 (PUTTAPPA vs RAMAPPA) even though he has extracted the law laid down by this Court regarding the amendment of the Commissioner. The learned Munsiff is too smart to ulbtinguish the law laid by this Court in order to allw the defendanVs appli cation. Normally, this Court would not disturb a discretionary order like thIs but, where exercise of Jurisdiction is eEroneous, necessarily the order has to be set aside in exercise of the jurisdiction under 5 ecticn 115 of CPC. It is a clear case of erroneous exercise or Jurisoiction. , , 4 , , 4 / In the result 0 the revision is alloweth The impugned order is set as•ide Sd/a JUDGE rs/