CRP 379/2009 BEFORE THE HON’BLE MR JUSTICE B.P.KATAKEY Heard Mr GN Sahewalla, learned senior counsel for the petitioner as well as Mr S Banik, learned counsel for the respondents. The petitioner, who is the defendant in Title Suit No.5/2008, pending in the Court of the learned Civil Judge No.1, Cachar at Silchar, by this petition has challenged the order dated 15th September, 2009 passed by learned Civil Judg e in the aforesaid suit rejecting the application filed by the present petitione r under Order 26 Rule 9 of the CPC for appointment of amin commission to take th e measurement of the land described in schedule 1 to the plaint. The said applic ation was rejected on the ground that that defendant has not filed the counter-c laim and that it is the claimant who is to prove the quantum of land within the boundary mentioned in schedule 1 to the plaint. It appears that the plaintiff has claimed right, title, interest & confi rmation of possession in respect of the land, measuring 13katha-14lecha-6gonda-2 kara, as described in schedule 1 to the plaint. The present petitioner filed the aforesaid application under Order 26 Rule 9 of the Code of Civil Procedure for measurement of the land within the said boundary contending that an area of 11ka tha-3chhatak of land is only available within the boundary as described in sched ule 1 to the plaint. Admittedly, the parties are yet to adduce evidence. The question ~ wheth er an amin commission is required to be appointed ~ cannot, therefore, be gone i nto at the stage when the application was filed by the present petitioner, since the parties to the suit, by adducing evidence, can clarify the said situation, and in that case there may not at all be necessary to appoint an amin commission . That being the position, the learned Civil Judge has not committed any i llegality in rejecting the application. The learned Court below, however, may, a t appropriate stage i.e. after recording of the evidences of the parties, consid er the prayer, if any, made by the defendants for appointment of amin commission and pass necessary order, provided the Court is of the view that such appointme nt is necessary for the purpose of disposal of the suit. In view of above, the revision petition is dismissed with above observat ion. The parties are directed to appear before learned Court below on 21st April 2011, for taking necessary order from the said Court.