PUSHPENDRA SINGH BHATI,J. - (1.) This writ petition has been preferred with the following prayers: "1. The record of the case may kindly be called for. 2. The order dated 23.01.2018 passed in Civil Miscellaneous application No. 42/2013 be quashed and set aside. 3. The learned trial Court may be directed to decide the matter on merits based on the evidence already collected by the parties. 4. Any other appropriate writ, order or direction which this Hon'ble Court deems just and proper may kindly be passed in favour of the petitioner."
(2.) Learned counsel for the petitioner states that the suit was for declaration and partition of the property between the parties as the property in question was being utilized for mining activities. The dispute pertained to Khasra No. 356 ad-measuring 78 Bigha and 18 Biswa of agricultural land. The application was preferred for appointment of Court of Commissioner under Order 39, Rule 7 of the CPC by the respondents. The application was disposed of by the learned Court below with a direction for appointment of the Court Commissioner to the Tehsildar for inspection of Khasra No. 356 and 357 and to prepare inspection report regrading the share of the persons cultivating the land, demarcation and photograph of the property.
(3.) Learned counsel for the petitioner has relied upon the judgment passed by Jaipur Bench of this Court in Safiq Ahmed v. Naseer Ahmed and Ors. decided on 09.05.2014. The relevant portion of this judgment, reads as under:- "8. A comparison of Order 26, Rule 9 and Order 39, Rule 7, clearly bring out the distinction that while the latter provision shall be used while dealing with a temporary injunction or an interlocutory order, the former provision can be used at any stage of the trial.. 13. Similarly, in the case of Amiyu Bhusan (AIR 1987 Ori 203) (supra) the Hon'ble Orissa High Court has merely observed that taking the evidence in the locality, inquiries and inspection of the disputed property by the Commissioner, will make his action one under Order 26, CPC. In that particular case the trial court deputed a Commissioner under Order 39, Rule 7, cpc. Thus, the report is to be treated as one under Order 39, Rule 7, cpc. Although His Lordship of the Hon ble Orissa High Court held that such a report cannot be treated as a piece of evidence, but with respect His Lordships has clarified as to the need, the nature, and the use of the inspection report under Order 39, Rule 7, cpc. Obviously, the inspection report under Order 39, Rule 7, cpc has a purpose for the trial court. It is merely an ornament to be kept in the judicial record. As stated above, the said inspection report would have to be necessarily taken on record and utilised for deciding the issues in dispute. Thus, it will form part of evidence . Therefore, this Court is, with respect, in agreement with the opinion expressed by His Lordship of the Hon ble Orissa High Court that an inspection report under Order 39, Rule 7, cpc does and cannot form part of evidence. ";