ORDER 1. The petitioner has filed the present petition being aggrieved by the order dated 7.1.2016 passed by the 2nd Civil Judge, Class-II by which application under Order 26 rule 9 of the CPC has been rejected. 2. The petitioner/plaintiff filed the suit for possession and means profit against the respondent/defendant No.1 contending that they are owner of Survey No.292 (Area 1.340), situated in Sherpur Khurd and the respondent may be directed to hand over the vacated possession of south side of Survey No.292, (area 0.25 hectare). 3. The respondent filed a written statement denying the aforesaid fact and contended that they have not encroached over the land of the plaintiff and they are in possession over their own land being Survey No.271. On their application, demarcation was done and in which it is found that the plaintiff had encroached upon some part of their land being Survey No.279. 4. During the pendency of the suit, an application under Order 26 rule 9 of the CPC was filed by defendant No.1 for appointment of Commissioner to submit the report of Survey No.291 (Area 500 R.A.) and stated that if the defendant No.1 is found in possession of the plaintiff's land, they are ready to vacate it. The said application was objected by the plaintiff. 5. The learned Civil Judge, vide order dated 7.9.2016, has allowed the said application with a direction to appoint a Revenue Inspector as a Commissioner to submit the report that as to how much area is in possession of the defendant No.1 over Survey No.291 hectare and the demarcation be done from the south side of Survey No.291. 6. Being aggrieved by the aforesaid order, the present petition has been filed by the petitioner. 7. Shri Dave, learned counsel for the petitioner submits that provision of Order 26 rule 9 cannot be used for collecting the evidence in the case. In support of his plea, he has placed reliance upon the judgment of this Court in the matter of Ashutosh Dubey and another v. Tilak Grih Nirman Sahkari Samiti and another, reported in 2004(3) MPLJ 213 . 8. In support of his plea, he has placed reliance upon the judgment of this Court in the matter of Ashutosh Dubey and another v. Tilak Grih Nirman Sahkari Samiti and another, reported in 2004(3) MPLJ 213 . 8. In reply Shri Sohane, learned counsel submits that the defendant has shown bona fide by filing the application and stated that if, on Commissioner's report, he is found to be in possession, he is ready to vacate the land and that the Commission would be helpful in deciding the controversy between the parties in the suit. 9. I have heard learned counsel for the parties. 10. The defendant No.1 has filed an application under Order 26 rule 9 of the CPC, for which he has stated that the plaintiff and the defendants are from one family and there was a mistake in the map attached to the sale deed and because of which the dispute had occurred between the parties. He has specifically stated that he is the owner of the land bearing Survey No.291 (Area 500 R.A) and there is no other land owned by him. The area may be measured by appointing any revenue officer as a Commissioner and if any extra land, more than 500 R.A, is found in his possession, then he is ready to surrender. The pleading of the defendant No.1 appears to be bona fide, therefore, the trial Court has rightly considered his prayer and directed for demarcation of land bearing Survey No.292 (Area 1.340 hectare) and Survey No.291 (Area 500 R.A.). 11. The scope of order 26 rule 9 was considered by the Supreme Court in the matter of Haryana WAQF Board v. Shanti Sarup and others, reported in 2009(I) MPWN 9= (2008) 8 SCC 671 , wherein, it has been held that if the controversy is regarding demarcation of the land between the parties, the Court should direct the investigation by appointing a legal Commission. Paras 4 and 5 of the aforesaid judgment is reproduced as under : “4. Admittedly, in this case, an application was filed under Order 26 rule 9 of the Code of Civil Procedure which was rejected by the trial Court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the Court ot direct the investigation by appointing a Local Commissioner under Order 26 rule 9, CPC. 5. 5. The appellate Court found that the trial Court did not take into consideration the pleadings of the parties when there was no specific denial on the part of the respondents regarding the allegations of unauthorised possession in respect of the suit land by them as per para 3 of the plaint. But the only controversy between the parties was regarding demarcation of the suit land because the land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial Court was wrongly rejected. 12. This Court in case of Durga Prasad v. Parveen Foujdar, reported in 1975 JLJ 440 =(1975) MPLJ 810, has also considered the scope of order 26 rule 9 and held that the Court should order the appointment of Commission when there is a dispute of encroachment. Para 25 of the said judgment is reproduced as under : 25. Point No.2: In cases where there is a dispute as to encroachment, the fact whether there is such an encroachment or not cannot be determined in the absence of an agreed map, except by the appointment of a Commissioner under Order 26, rule 9 of the Code of Civil Procedure. On 15.9.1966 the plaintiff, accordingly, applied for the issue of a commission to the Director of Land Records for a theodolite survey of the plaintiff's leasehold area. 13. This Court again in the matter of Jaswant s/o Kashi Ram Yadav v. Deen Dayal, reported in (2011)2 MPLJ 576 , had held that duties of the Court to issue a commission by appointing an employee of revenue department to get the land in dispute demarcated and for which no application is required. Para 10 of the said judgment is reproduced as under : “The moot question to be decided in this appeal is whether the property in question is of plaintiff or defendant. Both the parties are claiming ownership right on it. According to the plaintiff he purchased the land vide registered sale deed Ext-P-2 from Deen Dayal and the suit property is a piece of that land but according to the defendant it is part of the property which he purchased from Sudhir Shrivastava vide registered sale deed Ext-D-3. Both the parties are claiming ownership right on it. According to the plaintiff he purchased the land vide registered sale deed Ext-P-2 from Deen Dayal and the suit property is a piece of that land but according to the defendant it is part of the property which he purchased from Sudhir Shrivastava vide registered sale deed Ext-D-3. According to me, when there is dispute about demarcation of the property in question and its identity and both the parties are claiming it to be of their own on the basis of their document of title it was incumbent upon the Court itself to issue a commission by appointing an employee of revenue department not below the rank of Revenue Inspector to get it demarcated so that it can be identified. In the instant case my attention has been drawn by learned counsel for defendants to the application filed under Order XXVI, rule 9, Civil Procedure Code but the same has been rejected at the time of the consideration of temporary injunction application. To me learned trial Court erred in substantial error of law in rejecting the said application. The learned first appellate Court has also committed the same error by not allowing the said application. Indeed, it was the duty of the Court itself to issue commission by appointing an employee of Revenue Department not below the rank of Revenue Inspector to get the land in dispute demarcated and for its identification no application is required for that purpose.” 14. In view of the above, the trial Court has not committed any illegality, therefore, the impugned order is partly modified to the to the extent that the Commissioner is directed to submit the report about Survey No.291 and 292 as per law. He is free to conduct the survey as per available facts and circumstances from any direction. 15. With the aforesaid, the writ petition is partly allowed.