Judgment : 1. Heard Mr. Rohit Bras De Sa, learned counsel appearing for the petitioners and Mr. Nigel Da Costa Frias, learned counsel appearing for the respondents. 2. The above petition challenges an order passed by the learned Civil Judge Junior Division, Panaji, in Regular Civil Suit No. 11/2007 dated 03.08.2013 whereby an application filed by the respondents for appointment of Commissioner came to be allowed. 3. Mr. Rohit Bras De Sa, learned counsel appearing for the petitioners has vehemently argued that the appointment of the Commissioner would amount of calling for evidence at the instance of the Court. The learned counsel further pointed out that it is the contention of the respondents that the petitioners have encroached into the property purchased by the respondents pursuant to the three sale deeds dated 21.05.1984, 30.07.1984 and 08.06.1987 by which the respondents have purchased three contiguous plots of the property surveyed under No.11/5 of the Village Batim. The learned counsel further pointed out that according to the petitioners there is no encroachment as the land where the respondents alleged that there is an encroachment is part and parcel of the property which has been purchased by the petitioners pursuant to the sale deed dated 28.01.2004 forming part of the same survey number. The learned counsel further submitted that the learned Judge was not justified to appoint a Commissioner when the evidence has not been recorded. The learned counsel further submitted that the learned Judge while fixing the terms of reference to the Commissioner has inter-alia called upon the Commissioner to ascertain as to who is in possession of the disputed property. The learned counsel thereafter has taken me through the terms of the reference and pointed out that the learned Judge has directed the petitioners to demarcate the property which according to him would entail to examine as to who is in possession of the property. The learned counsel thereafter has taken me through the impugned order as well as the terms of reference and pointed out that the learned Judge has exceeded its jurisdiction in passing the impugned order which would call for interference by this Court under Article 227 of the Constitution of India. The learned counsel as such submits that the impugned order be quashed and set aside. 4. On the other hand, Mr. Nigel Da Costa Frias, learned counsel appearing for the respondent has supported the impugned order. The learned counsel as such submits that the impugned order be quashed and set aside. 4. On the other hand, Mr. Nigel Da Costa Frias, learned counsel appearing for the respondent has supported the impugned order. The learned counsel has pointed out that the Commissioner was already appointed by the learned Judge way back in the year 2007 on the same point of reference. The learned counsel further submitted that such Commission could not be completed as there were obstructions raised by the petitioners. The learned counsel further pointed out that the earlier Commissioner who had been appointed has refused to complete the work and as such the learned Judge was called upon to pass a fresh order appointing the Commissioner. The learned counsel further pointed out that the application filed by the petitioners was also in terms of Order 39 Rule 7 of the Civil Procedure Code read with Order 26 Rule 9 of the Civil Procedure Code as according to him there are proceedings for contempt which were pending for adjudication. The learned counsel thereafter has taken me through the terms of reference and pointed out that there is nothing on record to show that the Commissioner has been asked to ascertain who is in possession of the disputed portion of the property. The learned counsel further pointed out that the exercise directed by the learned Judge was essentially to identify the property as purchased by the respondents pursuant to the said sale deeds vis-a-vis sale deed executed in favour of the petitioners. The learned counsel as such points out that the petition be rejected. 5. I have carefully considered the submissions of the learned counsel and I have also gone through the records. The contention of Mr. Rohit Bras De Sa, learned counsel appearing for the petitioners that a Commissioner cannot be appointed to ascertain as to who is in possession of the property is well founded. The question to find out as to who is in possession of the property is a judicial function of the Court and such function cannot be delegated on the Commissioner. In fact, on perusal of the terms of the reference by the learned Judge there is nothing to suggest that the learned Judge has directed the Commissioner to find out as to who is in possession of the disputed portion of the property. In fact, on perusal of the terms of the reference by the learned Judge there is nothing to suggest that the learned Judge has directed the Commissioner to find out as to who is in possession of the disputed portion of the property. On perusal of the plaint as well as the other material on record, it is not in dispute that the case filed by the respondents is on the ground that the petitioners have encroached into their property which was purchased pursuant to the said three sale deeds. It is the contention of the petitioners that they have disputed the said contention by inter-alia contending that the alleged encroachment is part of the property which they have purchased pursuant to the sale deed dated 28.01.2004. In order to elucidate the position at loco it is always open to the learned Judge to appoint a Commissioner to identify the property of the petitioners and the respondents in terms of their respective sale deeds referred to herein above. Such type of exercise by the learned Judge cannot be said to be in excess of jurisdiction as contended by the learned counsel appearing for the petitioners. This Court in the judgment reported in 2009(4) Mh. L.J. 371 in the case of Girish Vasantrao Bhoyar and another V/s Nimbaji Warluji Bambal has observed at para 5 thus: “5. In the case of (Haryana Waqf Board Vs. Shanti Sarup & ors.) reported in 2008 DGLS (soft) 2122 : 2008(8) S.C.C. 671 , the Honble Apex Court has held that whenever there is a dispute of demarcation of the disputed land, it was appropriate for the Court to direct an investigation by appointing a local Commissioner under Order 26, Rule 9 of Civil Procedure Code. This Court in the case of (Kashinath Ramkrishna Chopade Vs. Purushottam Tulshiram Tekade & ors.), reported at 2005(4) Mh. L.J. 471, 2005(6) Bom.C.R. 267 , has held that cases of boundary dispute and dispute about the identity of the lands are instances where a Court should order a local investigation under Order 26, Rule 9 of Civil Procedure Code. In order to determine whether there is an encroachment, it is always desirable to get the measurements of the land encroached upon. In order to determine whether there is an encroachment, it is always desirable to get the measurements of the land encroached upon. Considering the said judgment of the Hon’ble Apex Court as well as the judgment of this Court, I find that there is no infirmity of any kind committed by the learned trial Judge while passing the impugned order and appointing a Commissioner for the purpose of carrying out the local investigation as ordered in the impugned order.” Considering the above observations, such Commissioner can be appointed in terms of Order 26 Rule 9 of the Civil Procedure Code to ascertain the position at loco with regard to the disputed property. In such circumstances, the question of any interference in the impugned order by this Court does not arise at all. 6. Be that as it may, considering the rival contentions, I find that some clarifications are to be given with regard to the terms of reference to the Commissioner. In the facts and circumstances of the case, the Commissioner appointed by the learned Judge would have to examine the identity of the property as claimed by the respondents in terms of three sale deeds and the property purchased by the petitioners in terms of sale deed dated 28.01.2004. The Commissioner will also have to disclose whether there are existing structures or not in any of such two portions of the property. The Commissioner shall prepare a fresh plan and depict such position by examining the respective sale deeds of the respective parties and annexures thereto while carrying out such exercise. After such Commissioner report is obtained, the learned Judge would have to examine such report in accordance with law. 7. Subject to the above, there is no case made out by the petitioners for any interference in the impugned order. The petition stands accordingly dismissed.