ORDER With the consent of parties, petition is heard finally. 1. The petitioner has filed the present petition against the orders dated 11.2.2015, 16.5.2015 and 22.7.2015, passed in Civil Suit No.115/2014, by Civil Judge, Class-II, Mahidpur, by which an application under Order 39 rule 7 of the CPC has been allowed. The petitioner is further aggrieved by the findings recorded by the learned Civil Judge that the respondent No.1 is in possession of the suit property. 2. The facts of the case are as under : The present respondent No.1, being plaintiff, has filed a suit against respondent No.2 and the State of Madhyra Pradesh for declaration of his right to half share in the property bearing Survey No.390 (Area 1.69 Acre). The claim of the respondent No.1 is based on his adoption by the husband of respondent No.2. By way of written statement, respondent No.2 has denied this averment and stated that she is the sole heir of her husband and further stated that she has already sold the suit land to the present petitioner by registered sale deed dated 28.6.2014. 3. On account of the aforesaid pleading about the sale, the petitioner was impleaded as defendant No.4 in the pending suit vide order dated 24.9.2014. After notice, the petitioner entered his appearance and filed written statement and stated that by virtue of sale deed dated 28.6.2014, his name has been mutated in the revenue records and pleaded that he is in possession over the suit land. 4. The respondent No.1/plaintiff filed an application under Order 39 rule 7 of the CPC praying for inspection of the property to ascertain about the possession over the suit land. The said application was opposed, however, vide order dated 11.2.2015, the trial Court has allowed the application and appointed Tahsildar, Mahidpur as Commissioner to inspect the land and submit a report in that regard. In pursuant to the said order, Tahsildar, Mahidpur submitted a report dated 24.3.2015. Being dissatisfied with the aforesaid report, the learned civil Judge again directed the Tahsildar to submit another report about who is in possession over the land. Again the Tahsildar submitted a report by the impugned order dated 16.5.2016 has held that the plaintiff i.e. repondent No.1 is having possession over the suit property. Thereafter, the petitioner filed an application for review, but by impugned order dated 22.7.2015, the same has also been rejected. 5. Again the Tahsildar submitted a report by the impugned order dated 16.5.2016 has held that the plaintiff i.e. repondent No.1 is having possession over the suit property. Thereafter, the petitioner filed an application for review, but by impugned order dated 22.7.2015, the same has also been rejected. 5. Hence the present petition challenging all the three orders dated 11.2.2015, 16.5.2015 and 22.7.2015. 6. Shri P.V. Bhagwat, learned counsel for the petitioner submits that the learned trial Court has wrongly considered the report about the possession under the provisions of Order 39 rule 7 of the CPC. The trial Court has travelled beyond its jurisdiction to entertain application under Order 39 rule 7 of the CPC. The issuance of commission is always under the provisions of Order 26 of the CPC, that too, after framing of the issues. The provisions of order 39 rule 7 has wrongly been invoked. The trial Court has wrongly recorded the finding that the plaintiff is in possession, whereas, the report of the Tahsildar speaks otherwise. In fact the Tahsildar has recorded that the present petitioner is in symbolic possession. 7. Per contra, Shri Prakash Pancholi, learned counsel for the respondent No.1 and Shri Manish Verma, learned counsel for the respondent No.2 argued in support of the impugned order and submits that the trial Court has not committed any illegality while passing the impugned order. When there is a dispute of possession over the property between the parties, then obtaining a report by appointing a commission is the only remedy. ORDER 8. It is not disputed that the plaintiff filed an application under Order 39 rule 7 which is reproduced below :- “7. When there is a dispute of possession over the property between the parties, then obtaining a report by appointing a commission is the only remedy. ORDER 8. It is not disputed that the plaintiff filed an application under Order 39 rule 7 which is reproduced below :- “7. Detention, preservation, inspection, etc., of subject matter of suit-(1) The Court may, on the application of any party to a suit, and on such terms as it thinks fit- (a) make an order for the detention, preservation or inspection of any property which is the subject matter of such suit, or as to which any question may arise therein; (b) for all or any of the purposes aforesaid authorize any person to enter upon or into any land or building in the possession of any other party to such suit; and (c) for all or any of the purpose aforesaid authorize any samples to be taken, or any observation to be made or experiment to be tried, which may or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence ? 2. The provisions as to execution of process shall apply, mutatis mutandis, to persons authorized to enter under this rule ?� 9. The Order 39 is under the Chapter XXXIX i.e. temporary injunction and Interlocutory Orders, therefore, these provisions is to be invoked at the time of deciding the application for temporary injunction. 10. The Court may on any application filed under an Order 39 rule 7 of the CPC, pass any order for detention preservation or inspection of any property which is a subject matter of the suit. After obtaining report after inspection report, Court is required to decide application for temporary injunction considering other material, pleading, affidavit etc. That would be an order in the nature of temporary injunction. On the basis of the such a report, the Court may or may not grant the temporary injunction. 11. The scope of Order 39 rule 7 CPC is recently considered by this Court in Writ Petition No.30/2013 (Balaram Mahajan v. Praveen Kumar and others). This Court held as under : “6. The Court below rejected the application on the ground that as per the averments of the application and the reply, it is clear that there exists a boundary wall. This Court held as under : “6. The Court below rejected the application on the ground that as per the averments of the application and the reply, it is clear that there exists a boundary wall. The existence of latrine and bathroom is also clear. The Court opined that at this stage no case is made out to invoke Order 39 rule 7 CPC. 7. It is apt to quote Order 39 rule 7 CPC which reads as under : “7. Detention, preservation, inspection, etc., of subject matter of suit-(1) The Court may, on the application of any party to a suit, and on such terms as it thinks fit- (a) make an order for the detention, preservation or inspection of any property which is the subject matter of such suit, or as to which any question may arise therein; (b) for all or any of the purposes aforesaid authorize any person to enter upon or into any land or building in the possession of any other party to such suit; and (c) for all or any of the purpose aforesaid authorize any samples to be taken, or any observation to be made or experiment to be tried, which may or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence ?� 2. The provisions as to execution of process shall apply, mutatis mutandis, to persons authorized to enter under this rule ? 8. The Order 39 can be traced in chapter on a temporary injunctions and Interlocutory Orders” and Rule 7 thereof is placed under the sub-heading Interlocutory Orders”. Order 26 under the Chapter on a “Commission” and rule 9 of Order 26 onwards come directly under the heading “Commissions to make Local Investigations.” 9. In the opinion of this Court, when a person is deputed under Order 26 rule 9 for ascertaining, collecting or elucidating facts in support of any matter in dispute and other things mentioned in the said rule, after proper scrutiny, enquiry, examination and sifting of the material, his report filed under Order 26 rule 9 is admitted in evidence and forms part of the record. The dictionary meaning of the word “investigation” is -- “Act of examining; ascertaining of facts; sifting of materials; search of relevant data.” The dictionary meaning of the word “inspect is :- “To examine; to look into; to look at narrowly, officialy, or ceremonially.” ‘Inspection’ is “the act of inspecting or looking into matters; careful or official examination.’ The context in which word inspection is mentioned in rule 7, it is clear that the said provision has been made mostly for the purpose of keeping on record the existing condition of the property so that if same is subjected to any change later on, deteriorated or subjected to any mischief by any other party/s or by any other agency or reason that can be know to the Court and if occasion arises Court may take not of it. However, the purpose of issuance of Pleader/Commissioner under rule 9 of Order 26 is for collecting the facts which in due course may be used as an evidence. I find support in my view from AIR 1980 Orissa 98 (Kalandi Swain and others v. Braja Kishore Dass and others). 10. The Kolkatta High Court in AIR 1954 (Calcutta) 233 (Lodna Colliery Co. (1920), Ltd. v. Bholanath Rai and others) opined as under :- “About six years after the filing of the suit and two days before the actual hearing commenced the defendant company filed a petition on 15.3.1949 for holding a local inspection by the Court to see whether certain boundary pillars had been removed from the lands in question. The defendant alleged that there had been certain boundary pillars on the site and they had just before the application had been made come to know that such pillars had been removed. The learned Sub-ordinate Judge refused the prayer as the existence of the pillars and their alleged removal could be proved by evidenced in Court. Three days later when the hearing was proceeding another application was filed by the defendant for local inspection by the Court. This prayer also was refused. The defendant claimed that the were pillars on the boundary between Mouza Sripur and another continguous Mouza Hariharpur and on another side of the said Mouza and Chak Brindahanpur. Three days later when the hearing was proceeding another application was filed by the defendant for local inspection by the Court. This prayer also was refused. The defendant claimed that the were pillars on the boundary between Mouza Sripur and another continguous Mouza Hariharpur and on another side of the said Mouza and Chak Brindahanpur. He rightly held that it was not a matter for local inspection under Order 39 rule 7, Civil P.C. But was a matter for local investigation under Order 26 rule 9 of the Code.”� 11. In the light of aforesaid, it is clear that the plaintiff, in fact, was seeking an investigation and not only the inspection. If his application Annexure P-4 is examined minutely, it will be clear that his purpose was to seek inspection to ascertain the real position of the boundary wall and latrine and bathroom. This exercise cannot be undertaken for the said purpose under Order 39 rule 7. Thus, I find no flaw in the order passed by the Court below.” 12. That in present case also the plaintiff filed application under Order 39 rule 7 CPC to get the investigation about the possession and after the order of Revenue Officer, Court has recorded finding that plaintiff is in possession. The learned civil Court has travelled beyond its jurisdiction. 13. In case of Ramayan Puri v. Bhoai @ Bhagwandeen (Writ Petition No.5957/2015, order dated 17.6.2015), this High Court has held as under : “Having heard the learned counsel for the petitioners, I am of the considered opinion that he reasoning given by the Court below is in accordance with law. At this stage the application for injunction has to be considered on the basis of the rival contention of the parties and the affidavit and other documentary evidence filed by the parties. It is also correct to state that any inspection report in respect of possession would amount to collection of evidence and would ultimately effect the result of the suit more so when such a course is not permissible as the parties are required to plead, prove and establish their case on the basis of the oral and documentary evidence adduced by the parties.” 14. In the present case, at the time of passing of an Order 39 rule 7 there was no such application for temporary injunction which was filed operating in the suit. In the present case, at the time of passing of an Order 39 rule 7 there was no such application for temporary injunction which was filed operating in the suit. According to the petitioner, the said application was filed only after 16.5.2015. It is settled law that the petitioner has to establish his case by way of evidence. The provision of appointing of commission even under Order 26 rule 9 cannot be use to collect the evidence, which has been held by this Court in case of Ashok Kumar Patel and others v. Ram Niranjan and others, reported in 2007(III) MPWN 123 , Suryabhan Singh v. State of M.P., reported in 2006(III), MPWN 42, Ashutosh v. Tilak G.N.S. Samiti, reported in 2004(3) MPLJ 213 and in Chunnilal v. Ramchandra, reported in 2002(I) MPWN 196 . 15. The Hon'ble Supreme Court has also considered the scope of order 26 rule 9 and held that the provision of Order 26 rule 9 is to be invoked if the controversy is regarding demarcation of the land between the parties. 16. Similar view has been taken by the Hon'ble Supreme Court in the matter of Haryana WAQF Board v. Shanti Sarup and others, reported in 2009(1) 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 or direct the investigation by appointing a Local Commissioner under Order 26 rule 9, CPC. 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. 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.” 17. 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.”� 18. Similar view was taken by the High Court that in the case of encroachment, appointing of commission is proper. In Durga Prasad v. Parveen Foujdar, reported in 1975 JLJ 440 =(1975) MPLJ 810, this Court 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.” 19. 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.” 19. Again this Court has taken similar view in case 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. 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. 20. In view of the law laid down in the above judgments, it is settled law that the commission can be appointed only in case of demarcation and encroachment. 20. In view of the law laid down in the above judgments, it is settled law that the commission can be appointed only in case of demarcation and encroachment. The issue of possession is to be decided only on the basis of evidence. 21. In view of the above law laid down, it is clear that the purpose or Order 26 rule 9 or 39 rule 7 is not to collect the evidence which can be taken during proceeding of the suit in the Court. The present petitioner is having registered sale deed in his favour and his name has been mutated in the records. The Tahsildar in its report has recorded the finding that the pillars were erected by Ashok Parwat i.e. the petitioner and which was not objected by the plaintiff i.e. respondent No.1, and on the basis of the circumstantial evidence, the symbolical possession of the petitioner is found but the only on the basis of statement of farmers the finding has been recorded that the plaintiff is in possession. 22. According to his Court, the issue of possession is a matter of evidence that after framing the issues, the burden lies on the plaintiff to establish by way of evidence. No such finding could be recorded by the trial Court on the basis of the report of Tahsildar. The commission's report is also liable to be proved if opposite party objects, therefore, the impugned order dated 16.5.2015 is set aside, so far it relates to recording the finding about the possession of the plaintiff. 23. The petition stands allowed. 24. No order as to costs.