IN THE HON’BLE HIGH COURT OF CHHATTISGARH AT BILASPUR W.P. 1227) No. %&S/ /2o11 WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PETITI DEFEN3i3: / . Rammu Satnami, S/o Chhotan Satnami, aged about 50 years, R/o Village \\ “5%”; ...... " Barchha, P.H. No. 63/06, W7)“\§¢:‘:4M** P.S. Aarang, Tahsil Aarang, aa Distt. Raipur (C.G.) QF‘ww ................ a VERSUS RES PLAIPNOTIEFFS DENTS /: 1. Ram Prasad, S/o Radheshyam Satnami, aged about 32 years. 2. Rakesh, S/o Radheyshyam Satnami, aged about 28 years. Yogesh Kumar S/o Ai Radheshyam Satnami, aged f about 10 years, minor, Through- Natural Guardian Elder brother Ram Prasad, All resident of Village Barchha, RH. No. 63/06, R.I. circle Mandir Hasaud, Tahsil Aarang, Distt. Raipur (C.G.) DEFENDANT / 4. State of Chhattisgarh Through— The Collector, Raipur, Distt. Raipur (C.G.) HIGH COURT OF CHHATTISGARH AT BILASPUR S.B: Hon’ble Shri Prashant Kumar Mishra Writ Petition (227) No. 825/2011 Shri 133111 Pandey, counsel for the petitioner. Shri R.R. Sinha, PL for the State/respondent No.4. WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA ORAL ORDER (10.02201 1) Heard. (2) The Trial Court has directed for issuance of commission for local investigation of the suit land and to submit a report. (3) The p1aintiff7respondent has preferred the suit for declaration of title and permanent injunction in relation to land bearing khasra No.540 situated at Village Barcha, PH. No.63/06, RI Circle Mandir Hasaud, District Aarang. The petitioner/defendant contended that he is, in fact, in possession of lands bearing khasra No. 538 and is not concerned with khasra No. 540. (4) . At the time of final argument, learned Trial Court, feeling difficulty in adjudication, has directed that the Tahsildar Aarang, District Raipur be appointed as Commissioner to make local' investigation and submit a report about the position/location of the fland bearing khasra No. 540, however, while issuing writ of s PETITIONER : Rammu Satnami Versus RESPONDENTS : Ram Prasad and others Appearance: KZK commission learned Trial Coutt has directed the petitioner/defendant to make payment of commissioner fee of Rs.500/-. (5) Ader hearing learned counsel for the petitioner, this Court does not find any error in the main part of the order whereby the Trial Court has issued commission and directed the Tahsildar to submit a report after making local investigation. However, later part of the order directing defendant No.1 to deposit the Commissioner fee is erroneous. It is the plaintiE who is seeking relief from the court and the burden initially lay upon him to prove that the defendant is in possession or is disturbing his possession on khasra No. 540. Even otherwise, if ultimately the plaintiff succeeds in the suiL the Trial Court may in' its discretion direct that the defendant shall bear the cost of the plaintiff On the other hand, if the suit is dismissed, the defendant cannot be made to make payment of any fee including the commissioner fee. In view of this, the later part of the order directing the petitioner/defendant to pay commissioner fee of Rs.500/- is set aside. (6) No interference is called for in the main order directing iSSuance of commission. Commissioner fee shall be borne by the plaintiff. (7) The writ petition stands allowed in part. However, if the plaintiff feels aggrieved, he may apply for the modification of this Sd/- Prashant Kumar Mishra Judge D‘N‘V order on any permissible grounds.