Sudhir Narain, J. - (1.) THE facts in brief are that the Petitioners filed suit against Respondent nos. 2 to 4 for cancellation of sale deed dated 16 -8 -1992 and for injunction restraining them from interfering in their possession over plot nos. 196, 197 and 202 and for demolition of the construction raised on these plots. The Defendants contested the suit inter alia on the ground that the disputed constructions have been raised over plot no. 201 and not over plot nos. 196, 197 and 202. The Petitioners applied for issuing of survey commission. The Court appointed Amin to make local inspection and to submit a report. The Amin submitted a report along with the map. The Petitioners filed objection against the report of the Amin. The Defendants did not file any objection against the said report. The trial Court rejected the objection of the Petitioners mainly on the ground that the objection of the Petitioners was not accompanied by any affidavit. The report was confirmed subject to evidence.
(2.) SUBSEQUENTLY , the Petitioner applied for fresh survey commission on the ground that the plots in dispute be measured on the basis of the settlement maps. The Court invited objection on the said application. The Defendants filed objection stating that the Amin had already submitted a report and map and the same having been confirmed by the Court, it had no jurisdiction to entertain any other application. The Court after hearing the counsel for both the parties again appointed Amin to make local inspection and survey the plots on the basis of settlement map and thereafter submit report. The Defendants aggrieved against the said order, filed revision before the learned District Judge, who allowed the revision and set aside the order passed by the trial Court. The Court was of the opinion that the trial Court had no power to appoint another survey commission as earlier the Amin as appointed, who had already submitted a report and such report was confirmed subject to evidence in the suit. This order has been challenged in this petition.
(3.) THE power to appoint a Commissioner is contained in Order 26 Rule 9 of the Civil Procedure Code. Sub Rule 3 of Rule 10 of the Code empowers the Court to direct further enquiry, in case the Court is dissatisfied with the proceedings of the Commissioner. It reads as under : Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.;