ORDER 1. Heard on the question of admission and interim relief. 2. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the order dated 14.11.2017 passed in Civil Suit No. 80-A/2005 by First Civil Judge Class I to the Court of Third Additional Judge Class I, Bhopal, whereby, an application under Order 26 rule 9 of CPC for appointment of Commissioner has been rejected. 3. Brief facts leading to filing of this petition are that respondent No. 1/plaintiff filed a suit for declaration and permanent injunction claiming declaration of the suit property consisting of 2.88 acre from Khasra No. 150/87, 0.20 decimal from Khasra No. 102/87, 3.11 acres of land from Khasra No.86 and 0.75 acre from Khasra No.85, total land consisting of 6.94 acres and also claimed a relief to set aside the judgment and decree dated 25.4.2005 drawn in favour of defendants No. 2 and 3 in Civil Suit No. 132-A/2003 and to declare the same as null and void and also sought a relief to declare the sale deed dated 14.7.2010 executed by the defendants No. 2 and 3 as null and void and not binding on the plaintiff. It is further submitted that the petitioner/defendant is in exclusive possession of the part of the suit property bearing Khasra No. 86/1/2 consisting of 2.11 acres which was sold by the defendants No.2 and 3 vide registered sale deed dated 13.7.2010 and on the basis thereof, the petitioner got the said property mutated in his name. Since the injunction was granted by the trial Court vide dated 4.10.2017 in favour of respondent No. 1/plaintiff without appreciating the documents on record; therefore, the petitioner/defendant filed an application under Order 26 rule 9 CPC for appointment of commissioner to ascertain the factual possession of the petitioner, as no injunction could have been granted by the Court below affecting the right of petitioner who is title holder having physical possession over the part of the suit property. 4. Learned counsel for the respondents has submitted that the scope of Order 26 rule 9 CPC is to ascertain the matter in dispute, market value of any property, mesne profit or damages etc. But issuing of commission for investigating the fact that which of the party is in possession of the property is beyond the scope of Order 26 rule 9 CPC. But issuing of commission for investigating the fact that which of the party is in possession of the property is beyond the scope of Order 26 rule 9 CPC. This question has to be decided by the Court after adducing the evidence by the parties. The Court has to record findings in this regard and the aforesaid job of the Court cannot be shifted to the Commissioner. In the circumstances, learned counsel for the respondent has supported the impugned order and prayed for dismissal of the instant petition. In support of his contentions, he has relied upon the judgments reported in Suryabhan Singh v. State of M.P. [ 2006(5) MPHT 346 ], Ashutosh Dubey v. Tilak Grih Nirman Sahkari Samiti [ 2004(3) MPLJ 213 ], and Ashok Parwat v. Sudharshan [ 2016(4) MPLJ 210 ]. 5. Heard learned counsel for the parties. 6. Learned trial Court after considering the submissions of both the parties has rejected the application on the ground that the said application has been filed for collecting the evidence to the effect that which party is in possession over the suit property. 7. This Court has consistently taken a view that appointment of Commissioner is discretion of the trial Court. If discretion has been exercised by the Court below, it cannot be said that the Court has committed error of jurisdiction by rejecting the application under Order 26 rule 9 CPC. 8. In Suryabhan Singh (supra), and Ashok Parwat (supra), this Court has taken a view that the power should not be exercised to collect the evidence whether the party is able to produce the desired evidence or not is dependent on the facts of each case. The Commission cannot be issued to ascertain the actual position for disputed property and such issue can be decided by the Court itself on the basis of evidence. Even considering rule 9 of Order 26 of CPC, the language itself is in equivocal terms as it states that any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and report thereon to the Court. 9. 9. In the present case, the trial Court is justified in rejecting application under Order 26 Rule 9 CPC as the same appears to be an afterthought to collect the evidence. The trial Court has not committed any jurisdictional error so as to warrant interference in the matter. Accordingly, the petition is dismissed. No order as to costs.