W.P. No.17523.11 Writ Petition No. 17523 of 2011 25/11/2011 Shri Akhilesh Jain, learned counsel for the petitioner. Heard. Petitioner filed a Civil Suit No 24-A/2011 in the Court of Second Additional Judge to the Court of First Civil Judge Class-II, Seoni, seeking mandatory injunction and direction to the respondent/defendant to remove encroachment. Plaint allegations are that the petitioner purchased plot No. 5 (new number 1/1 Ka) admeasuring 2750 sq. ft. of village Seerdiwan Patwari Halka No. 77/1 NB 436, tahsil and district Seoni, vide sale deed dated 19-04-1978 for a consideration of Rs. 2,000/-. Petitioner got a house constructed leaving 1½ feet open space on eastern and western side for nistar purpose. On the eastern side lives the respondents/defendants who as per plaint allegations has occupied the vacant portion by raising the temporary structure. Petitioner led evidence in support of pleadings. After closure of his evidence petitioner filed application under section 26 Rule 9 of the Code of Civil Procedure for issuance of W.P. No.17523.11 commission to furnish the report regarding the boundaries to resolve dispute. Trial Court vide impugned order dated 16-09-2011 rejected he application and the contention regarding boundary dispute. The trial Court observed that the respondents/defendants were the occupier of the land in their possession and the burden is on the petitioner/plaintiff that when he purchased 2750 sq. ft. he was actually placed in possession over the entire land. Order 26 Rule 9 of the Code of Civil Procedure, 1908, stipulates :- “9. Commission to make local investigations.- In any suit in which the Court deems a local investigation to be requisite or roper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, he Court shall be bound by such rules.” A close perusal of the aforesaid provision reveals that the Court can order for a local investigation to enable the clarification of W.P. No.17523.11 peculiar nature of facts/any point which is left in doubt even after the parties have adduced their evidence. In the case at hand the facts as borne out from the record reveal that the dispute is in respect of ownership of the disputed property and unless it is proved by the petitioner that the disputed portion was taken possession of when he purchased the property question of issuing commission to ascertain the said facts would tantamount to collecting of evidence which is impermissible under the said provision. In view whereof there being no jurisdictional error no interference is caused. In the result petition fails and is hereby dismissed. (SANJAY YADAV) JUDGE SC