Abhilasha Kumari, J.—This petition has been filed under Articles 226 and 227 of the Constitution of India with a prayer to quash and set aside order dated 02.05.2009 passed by the Trial Court below application at Exhibit 22 whereby the prayer made by the petitioner for appointment of a Court Commissioner has been rejected. 2. The brief facts of the case, as stated in the petition, relevant for the decision are that, the petitioner, who is the original plaintiff, is a Non Resident Indian, now settled in the United Kingdom. The petitioner and Respondent No. 7 owned agricultural land at village Chhaya, Porbandar, bearing Survey No. 187/2. The Respondent No. 1 owns agricultural land bearing Survey No. 187/1, which is adjoining the lands of the petitioner. According to the petitioner, taking undue advantage of the family dispute between the petitioner and Respondent No. 7, the Respondent No. 1, in collusion with Respondents Nos. 2 to 6, has encroached upon a huge portion of the land of the petitioner and Respondent No. 7. The Respondent No. 1 has sold his land bearing Survey No. 187/1 to the Respondents Nos. 2 to 6 who have also purchased a portion of land out of Survey No. 187/1. The said lands have been converted for non-agricultural purposes and the Respondents Nos. 2 to 6 are purportedly developing the said lands for residential and commercial use. It is the case of the petitioner that the Respondents Nos. 2 to 6 have removed the Kutchha boundary wall between the lands of the petitioner and the lands of the Respondent No. 1 and have encroached upon land admeasuring 4000 sq.mtrs. Owned by the petitioner by merging the said area into the lands of the Respondents Nos. 1 to 6. As of today, though the Respondents Nos. 2 to 6 have secured the permission to develop the land admeasuring approximately 8802 sq.mtrs., they are developing approximately 12000 sq.mtrs. of land by encroaching upon the land of the petitioner. It is the case of the petitioner that upon coming to know about the aforesaid developments, he immediately came to India and made complaints to all possible authorities including filing an application before the DILR, Porbandar for measurement of the whole plot of land bearing Survey No. 187 and paid fees of Rs. 3,000/- on 09.09.2008, but no steps were taken. 3,000/- on 09.09.2008, but no steps were taken. The petitioner therefore had no option but to approach the Civil Court, Porbandar, by filing Regular Civil Suit No. 314 of 2008 seeking relief of declaration and permanent injunction against the present respondents. The petitioner moved an application for grant of temporary injunction below Exhibit 5, which is still pending. On 10.09.2008, the petitioner had preferred an application below Exhibit 6 under the provisions of Order 26 of the Code of Civil Procedure for appointment of a Court Commissioner. Thereafter, both the petitioner and respondents filed a joint application at Exhibit 13 on 16.09.2008 for measurement of the lands of the plaintiffs as well as the present respondents (original defendants. The said application was rejected by the Trial Court on the ground that Respondent No. 7, who is a co-owner of land bearing Revenue Survey No. 187/2 had not been joined in the suit. Accordingly, Respondent No. 7 moved an application for being joined as defendant No. 7, which has been allowed and the said respondent is now a party to the suit. The petitioner thereafter moved application below Exhibit 22 for appointment of Court Commissioner to measure the lands belonging to him as well as the defendants which has been dismissed by passing the impugned order, giving rise to the filing of the petition. 3. Mr. Mehul S. Shah, learned Counsel for Mr. Hriday C. Buch, learned Counsel for the petitioner, has made the following submissions: (a) The land of the petitioner and respondents are adjoining to each other. The lands of the petitioner are comprised in Survey No. 187/2 whereas the lands of the Respondent No. 1 bear Survey No. 187/1. The Respondent No. 1 sold the said land to Respondents Nos. 2 to 6, who are developing the land and during the process of such development, the petitioner found that the said respondents have encroached upon his land. The Respondent No. 1 has made a categorical averment in the written statement filed by him wherein it is stated that the said respondent has not encroached upon the land of the petitioner and upon measurement if such encroachment is found then the respondent is ready and willing to remove the same. The Respondents Nos. 2 to 6 have stepped into the shoes of Respondent No. 1. The Respondents Nos. 2 to 6 have stepped into the shoes of Respondent No. 1. On finding that the said respondents have encroached upon the land of the petitioners, purportedly for the purpose of development by removing the boundary walls, the petitioner filed the suit in which the said written statement has been filed by Respondent No. 1. (b) That earlier, the petitioner and Respondent No. 1 had jointly filed an application for appointment of a Court Commissioner and drawing of panchnama after measuring the land, which was rejected on the ground that Respondent No. 7 who is a co-owner of the land, was not a party to the suit. It is stated that now as the said respondent has been joined as party-defendant No. 7 in the suit, the reason for rejection of the application does not survive and the Court below could not have rejected the application on this ground, among others, as has been done by the impugned order. (c) That the measurement of land owned by the petitioner by DILR was conducted on an application made by the petitioner on his own which has nothing to do with the application for appointment of a Court Commissioner preferred by the petitioner before the Trial Court. It is further emphasized by the learned Counsel for the petitioner that the measurement of the land by the office of DILR has taken place only regarding Survey No. 187/2, which is the land of the petitioner whereas by filing the application at Exhibit 22, the petitioner has prayed for measurement of the lands of both the petitioner and the respondents, being Survey No. 187/2 and 187/1, as it is his case that the respondents have encroached upon a huge portion of his land. (d) That as the measurement of the land carried out by the DILR is only in respect of the land of the petitioners, there is no justifiable reason for rejecting the application for measurement of the land of both parties. (e) That the impugned order has been passed without taking into consideration the legal and factual position and evidence on record. The Respondent No. 1 earlier had no objection to the filing of the present application and had made an endorsement to this effect thereupon. However, later on, the said respondent has, in collusion with Respondents Nos. (e) That the impugned order has been passed without taking into consideration the legal and factual position and evidence on record. The Respondent No. 1 earlier had no objection to the filing of the present application and had made an endorsement to this effect thereupon. However, later on, the said respondent has, in collusion with Respondents Nos. 2 to 6, stated that there is no requirement for appointment of a Court Commissioner in view of the measurement of the land by the office of DILR and the Court below merely acted on the say of the respondents without taking into consideration the submissions made by the petitioner or the purpose for which the application for appointment of a Court Commissioner has been filed. (f) That the Court below has not exercised jurisdiction vested in it in a proper and just manner and thereby grave injustice will be caused to the petitioner if the said order is permitted to stand and therefore the order may be quashed and set aside and the petition allowed. In support of the above submissions, the learned Counsel for the petitioner has placed reliance upon a judgment of the Supreme Court in Shreepat vs. Rajendra Prasad and Others, JT 2000 (7) SC 379. 4. Mr. Ashish M. Dagli, learned Counsel for the Respondents Nos. 1, 3, 5, and 7, has submitted as under: (i) That the dispute is regarding the boundaries of the lands of the respective parties and it is only an expert who can measure the said boundaries correctly and as measurement has already been carried out by the office of the DILR on an application made by the petitioner, there is no necessity of appointing a Court Commissioner and the Court below has rightly rejected the application of the petitioner. (ii) That the application has also been rejected on the ground that the co-owners of the land have not been joined in the suit. The Respondent No. 1 has sold the land to the Respondents Nos. 2 to 6 who have plotted the land and sold the plots to other persons and therefore, in the absence of the owners of the plots, the application for appointment of Court Commissioner has rightly been rejected. Therefore, the petition may be rejected. 5. The Respondent No. 1 has sold the land to the Respondents Nos. 2 to 6 who have plotted the land and sold the plots to other persons and therefore, in the absence of the owners of the plots, the application for appointment of Court Commissioner has rightly been rejected. Therefore, the petition may be rejected. 5. I have heard the learned Counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record. A perusal of the impugned order makes it clear that the learned Trial Court has rejected the application of the petitioners on three grounds, namely that the persons who have been allotted the plots of Respondents Nos. 2 to 6 have not been joined, that the office of DILR has already made measurement of the land of the petitioner and that the earlier application for appointment of a Court Commissioner that had been jointly filed by the petitioner and the Respondent No. 1 had been rejected. 6. The application of the petitioner at Exhibit 22 for appointment of a Court Commissioner has been filed on the ground that after the sale of the land bearing survey No. 187/1 by Respondent No. 1 to Respondents Nos. 2 to 6, under the guise of purported development, the said respondents have encroached upon a huge portion of the petitioner’s land bearing Survey No. 187/2, therefore, both the parcels of land belonging to the petitioner as well as the respondents should be measured, in order to ascertain the ground realities on the spot. One of the grounds for rejection of the application is that the petitioner has had his land bearing Survey No. 187/2 measured by the office of the DILR and therefore the application cannot be allowed. In the considered opinion of this Court, the prayer made in the application is for measurement of both parcels of land and not merely for measurement of the land of the petitioner, therefore, this ground for rejecting the application of the petitioner does not appear to be justifiable. 7. In the considered opinion of this Court, the prayer made in the application is for measurement of both parcels of land and not merely for measurement of the land of the petitioner, therefore, this ground for rejecting the application of the petitioner does not appear to be justifiable. 7. Insofar as the rejection of the earlier application filed jointly by the petitioner and respondents for appointment of a Court Commissioner is concerned, the record reveals that the same has been rejected as the sister of the petitioner, who is Respondent No. 7 herein, a co-owner of Survey No. 187/2, had not been joined in the suit at the relevant point of time. After the rejection of the earlier application, the Respondent No. 7 preferred an application for joining her as party-defendant, which has been allowed and Respondent No. 7 is now joined as party-defendant No. 7 in the suit, therefore, the rejection of the application on this ground also is not tenable. 8. The third ground for rejecting the application of the petitioner is that the land has been plotted by Respondents Nos. 2 to 6 and some plots have been allotted to other persons, who are not joined in the application. The allotees of the land have stepped into the shoes of Respondents Nos. 2 to 6 who are parties to the suit. The Respondents Nos. 2 to 6 have carried out development activities pending the suit, and appointment of a Court Commissioner in order to ascertain the factual position on the spot and to elucidate the matter in dispute would not, in any way, prejudice the allotees or any party to the suit. In fact, it would aid the Court in coming to a proper conclusion regarding the averments made in the application filed by the petitioner, especially in the light of the specific averments contained in the written statement. 9. In Shreepat vs. Rajendra Prasad and Others (Supra) relied upon by the learned Counsel for the petitioner, the Supreme Court has observed as under: “4. In our opinion, this contention is correct. 9. In Shreepat vs. Rajendra Prasad and Others (Supra) relied upon by the learned Counsel for the petitioner, the Supreme Court has observed as under: “4. In our opinion, this contention is correct. Since there was a serious dispute with regard to the area and boundaries of the land in question, especially with regard to its identity, the courts below, before decreeing the suit should have got the identity established by issuing a survey commission to locate the plot in dispute and find out whether it formed part of Khasra No. 257/3 or Khasra No. 257/1. This having not been done has resulted in serious miscarriage of justice. We consequently allow the appeal, set aside the order passed by the courts below as affirmed by the High Court and remand the case to the trial court to dispose of the suit afresh in the light of the observations made above and in accordance with law.” As the factual situation prevailing in the present case is somewhat similar, the observations made by the Supreme Court would apply to the present case as well. 10. For the aforesaid reasons, the petition is partly-allowed. The order dated 02.05.2009 passed by the learned Additional Civil Judge, Porbandar, below application Exhibit 22 in Regular Civil Suit No. 314 of 2008 is set aside. The matter is remanded to the Trial Court for deciding the application Exhibit 22 afresh, for appointment of a Court Commissioner, preferably an officer of the Court, for the purpose of measuring both the parcels of land belonging to the petitioner and the respondents. Rule is made absolute to the above extent. There shall be no order as to costs.