1 SB Civil Writ Petition No.7668/2008 Andaram & Ors. vs. Purnaram & Anr. S.B. Civil Writ Petition No.7668/2008 Andaram and others. vs. Purnaram and another. Date : 22.1.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.Rakesh Sinha, for the petitioners. Mr.AK Khatri, for the respondents. - - - - - Heard learned counsel for the parties. The trial court appointed Commissioner to inspect the site who submitted his report dated 8.7.2008 against which the respondents filed objections. The trial court vide order dated 9.9.2008 held that from the Commissioner's report, it is not clear whether the way is passing through khasra no.226 then 294, 292 and beyond those khasras, therefore, the trial court allowed the objection of the objectors and directed the Tehsildar, Sri Doongargarh to give report about actual position of Khasra Nos.292 to 226 and Khasra Nos.226 to 294 and report whether their 2 SB Civil Writ Petition No.7668/2008 Andaram & Ors. vs. Purnaram & Anr. exists any way over their lands or not ? and whether the way is old or not ? Learned counsel for the petitioners vehemently submitted that the Commissioner cannot be appointed for collecting evidence and he relied upon two judgments but from the facts of the case, it is clear that those judgments have no relevance as the order to appoint the Commissioner is not under challenge. The challenge is for appointment of fresh Commissioner on finding that the Commissioner's report dated 8.7.2008 has not disclosed the facts needed by the Court for deciding the matter between the parties. It is settled law that a Commissioner cannot be appointed for collecting the evidence for either parties but once the Court has decided that for deciding the issue involved, the position of the property in dispute, its nature, its character and its use, the report of Commissioner is necessary, then the Court has ample power to appoint the Commissioner. As stated earlier, the order appointing the 3 SB Civil Writ Petition No.7668/2008 Andaram & Ors. vs. Purnaram & Anr. Commissioner is not under challenge, the challenge is against resending the Commissioner for inspecting the site. Learned counsel for the petitioners submitted that the earlier Commissioner's report contains sufficient facts in relation to the position of the way whether it exists or not from khasra no.s292, 294 and 295 and, therefore, the order of the trial court has been passed without reading the Commissioner's report dated 8.7.2008. Learned counsel for the respondents submitted that in pursuance of the order dated 9.9.2008, the Commissioner has already been appointed and he has submitted the report and that report was submitted prior to preferring this writ petition by the petitioners. Therefore, this writ petition has become infructuous. The trial court's order dated 9.9.2008 since has already been executed by the Commissioner and the Commissioner has already submitted the report, therefore, in the facts of the case, this Court deems no reason to interfere in the impugned order 4 SB Civil Writ Petition No.7668/2008 Andaram & Ors. vs. Purnaram & Anr. and the writ petition to challenge the said order filed after the Commissioner has already submitted report to the trial court, is liable to be dismissed. In view of the above reasons, this writ petition is dismissed. However, the petitioners will be free to challenge the impugned order in the appeal in case any occasion arises for the petitioners to challenge the same. (PRAKASH TATIA), J. S.Phophaliya