Tarun Agarwala, J. - (1.) Heard Sri Ravi Kant, the learned senior counsel assisted by Sri S.N. Shukla for the petitioner and Sri N.L.Pandey, the learned counsel for the respondent No3.
(2.) The respondent No.4, namely, the Cooperative Society sold plot No.8 to the petitioner, plot No.3 to the plaintiff-respondent No.3 and plot No.9 to respondent No.5 after carving it from the original Araji No.36, situated at Stanley Road in the city of Allahabad. It is alleged that the plaintiff-respondent No.3 encroached 31 feet of land on the east side of the plot and 5 feet on the west side and in this regard, a notice was issued by the Society to the plaintiff to remove the illegal encroachment and construction on it. The plaintiff filed a suit against the Society praying that they should be restrained from demolishing the construction raised by the plaintiff. An Advocate Commissioner was appointed by the Court who submitted an inspection report dated 27.6.1984. Subsequently, the plaintiff filed an amendment application alleging that the petitioner had encroached a portion of the plaintiff's land on the western side and therefore, prayed that he should also be impleaded as a defendant and further sought amendment in the prayer clause, namely, that a decree of possession be passed against the petitioner. The amendment was allowed and the petitioner was also impleaded as a necessary defendant in the suit. It has also come on record that the then Presiding Officer also made a physical inspection on the spot and submitted a report dated 31.10.1987. Much later in the year 1999, the plaintiff sought another amendment seeking deletion of the relief against the Society and confining the suit only against the petitioner. The petitioner, during the pendency of the suit moved an application for measuring plot Nos.2, 8 and 9. This application was disposed of by an order dated 7.3.2002 on the ground that since an Advocate Commissioner as well as the Presiding Officer had already inspected the area, it was not necessary for the Court to issue another Commission and, if after evidence, it was found by the Court, that it was necessary to make a survey of the area, in that event, the Court would consider the matter afresh. However, the trial court without considering this aspect of the matter decreed the suit and directed the petitioner to remove the encroachment. The petitioner filed an appeal and during its pendency moved an application under Order 26 Rule 9 of the Code of Civil Procedure for a survey Commission to measure plot Nos.2, 8 and 9. This application was rejected by the impugned order dated 10.11.2006, on the ground, that the plots were already identifiable and therefore, it was not necessary to issue a survey Commission. The Court further held that the extent of encroachment, if any, would be considered at the time of the hearing of the appeal and, at that stage, the Court, if it was satisfied, would consider the issuance of a survey Commission. The petitioner, being aggrieved by the said order, has filed the present writ petition.
(3.) The learned counsel for the petitioner submitted that the entire controversy involved in the present writ petition was not one of identification of the plots but was one of encroachment made by the respective parties. Consequently, in order to find out as to whether any of the parties had encroached the land or not, it was necessary to get a survey made and get the plots measured on the spot and then compare it with the measurement of the area shown in the sale-deed. The learned counsel for the petitioner submitted that the identification of the property was different from the encroachment of the property and, whereas the property could be identified by the boundaries, the encroachment could not be proved conclusively by the identification of the plots.;