JUDGMENT Hon’ble Tarun Agarwala, J.—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 No. 3. 2. The respondent No. 4, namely, the Co-operative 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 plaintiffs 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 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. 4. On the other hand, the learned Counsel for the respondents submitted that the impugned order does not suffer from any error of law and that an Advocate Commissioner had already made an inspection on the spot which report was already on the record and that the Presiding Officer had also made a physical inspection and its report was also on the record and therefore, there was no necessity for issuing a survey Commission at the appellate stage which had only been done to prolong the hearing of the appeal. The learned Counsel for the respondents further submitted that the provisions of Order XXVI Rule 9 read with Section 107 of the C.P.C., could be exercised by the authority only at the time of the hearing of the appeal and, if the appellate authority finds that it was necessary to get the plots measured, it could then exercise its discretionary powers. The learned Counsel for the petitioner submitted that the hearing of the appeal has not as yet begun and therefore, at this stage, the application of the petitioner could not have been allowed. 5. Having given my considerable thought in the matter and upon hearing the parties at length, this Court finds that the impugned order cannot be sustained. The approach adopted by the appellate authority was erroneous. From a perusal of the plaint and the written statements, it is clear, that there are allegations and counter allegations of encroachment. The plaintiff alleges that the petitioner and respondent No. 5 had encroached the land of the Society. On the other hand, the Society has alleged that the plaintiff alone had encroached the land. Consequently, it was imperative for the Court below to find out the extent of the encroachment, if any, made by the parties involved in the suit. 6. From a reading of the judgment of the trial Court, I find that issue No. 3 had been framed, namely, as to whether the plot was identifiable or not. This issue would not help the matter. In Sreepat v. Rajendra Prasad and others, 2000 ALR 534, the Supreme Court held that where there was a serious dispute with regard to the identification of the land, in that event, before decreeing the suit, the identity of the land as well as the location of the plot should have been found out through a survey Commission. 7. In Subhaga and others v. Shobha and others, 2006(5) SCC 466 , the Supreme Court held that once a property has been identified and even if there was a discrepancy, the boundaries would prevail normally and it would not be necessary to survey the adjacent plots in order to find out whether an encroachment was made in the property concerned. In my opinion, the said judgment is distinguishable. The identification of the plot is different from an encroachment of the property in question. In my opinion, the said judgment is distinguishable. The identification of the plot is different from an encroachment of the property in question. A property can be identified by the boundaries but the encroachment cannot be proved conclusively by identification of the plot and the same has to be surveyed. In my opinion, there is no other way of proving the extent of encroachment other than an actual measurement on the spot. 8. In Parvez Akhtar and others v. IVth Additional District Judge, Agra and another, 1992 (Suppl.) RD 251, the power of the Court under Order XXVI, Rule 9 of the C.P.C., was explained as under : “A bare reading of the aforesaid provisions indicates that power to issue a commission to make local investigation is the discretionary power of the Court and that also, just with a view to elucidate any matter in dispute. No doubt, that the discretionary power has to be exercised not at the whims of the Court, but in accordance with the principles of law. In its collective wisdom, the legislature has enacted Order XXVI Rule 9, very carefully” 9. From the aforesaid, it is clear, that the object of an issuance of a Commission is that some assistance could be derived from the facts found after investigation by the Commissioner on the spot. The investigation must be in respect of the matter in dispute. The discretion of the Court could only be exercised after following all the conditions with a view to obtain certain facts investigated by the Commissioner which could only be done upon a spot investigation and which is directly in respect of the dispute. The underlying purpose of this inspection is to enable the Court to properly and correctly appreciate the evidence on record. 10. The submission of the learned Counsel for the respondent that the Advocate Commissioner had already submitted his report and the prescribed authority had also made an inspection, in my opinion, is not helpful in the matter. This is for the reason that the Advocate Commissioner at the time when he made the inspection, the controversy with regard to the alleged encroachment by the petitioner had not arisen at that moment of time and, that the petitioner was not a defendant in the suit at that moment of time. This is for the reason that the Advocate Commissioner at the time when he made the inspection, the controversy with regard to the alleged encroachment by the petitioner had not arisen at that moment of time and, that the petitioner was not a defendant in the suit at that moment of time. The controversy at that stage was only between the plaintiff and the Society and the defendant No. 5. In so far as the inspection report of the Presiding Officer is concerned, it does not indicate, that he had made any measurement of the plots in question. 11. No doubt the discretion should be exercised by the Court at the time of the hearing of the matter. In the present case, the appeal is already ripe for hearing. Since in my opinion, a survey Commissioner is necessary to inspect and measure the plot Nos. 2, 8 and 9, consequently, the impugned order cannot be sustained and is quashed. The writ petition is allowed. The appellate authority is directed to issue a survey Commission and thereafter hear and decide the appeal within six months. ————