JUDGMENT Vinit Kumar Mathur, J. 1. The present writ petition has been filed against the order dated 10.05.2017 passed by learned Civil Judge & Judicial Magistrate, Ladnu in Civil Original Case No.5/2005, whereby the application filed by the plaintiff under Order 26, Rule 9 C.P.C. of has been rejected. 2. Heard learned counsel for the petitioner. 3. Learned counsel for the petitioner submits that in the present suit the strip of land on which a 'Chabutari' exists is falling within precincts of his Patta therefore the respondents are trying to demolish the same on the ground that the said 'Chabutari' is not falling within the four corners of the Patta granted to the petitioner and the subject 'Chabutari' is in between the public way. 4. In the civil suit, the written statement has already been filed by the respondents and the plaintiff's evidence has also been completed. At this stage, the application under Order 26, Rule 9 C.P.C. has been preferred by the applicant for appointment of the Commissioner for ascertaining the actual factual status in the matter. 5. Learned counsel for the petitioner submits that by appointment of a Commissioner, it will be cleared that whether the 'Chabutari' falls within the Patta granted to the petitioner or outside the Patta and that will clinch the issue in the matter. 6. Learned counsel for the petitioner has relied upon the judgment of Bombay High Court delivered in the case of Ramzan Sheikh Chand Sheikh through LRs & Ors. v. Panjab S/o Nathuji Gawande; 2015(1) Civil Court Cases 004 (Bombay) wherein it has been held that the Commissioner should be appointed in order to get the disputed property measured by competent surveyor to find out encroachment and its extent and that, oral evidence cannot prove such contentious issue conclusively. 7. In the present case there are all information available as far as the land in question is concerned the only issue of the matter is with regard to subject of the suit property with respect to the 'Chabutari' in question, whether the same falls in Patta or outside the Patta, the same is to be decided then the appointment of Commissioner, at this stage, is not desirable. Hence, the judgment relied upon by learned counsel for the petitioner is of no application in the present case. 8. Hence, the judgment relied upon by learned counsel for the petitioner is of no application in the present case. 8. In the order impugned, the trial Court has very categorically mentioned that after the evidence is led the subject matter of the suit that whether the 'Chabutari' falls within the Patta or not is to be decided. The same can be decided after examination of the evidence brought on record as well as the arguments advanced by learned counsel. Learned trial court has very specifically mentioned that in pursuance to the appellate Court's order in Appeal No.3/11 with regard to appointment of Commissioner, the petitioner was granted an opportunity to move an appropriate application for appointment of Commissioner on 09.01.2013. In pursuance to that observation also, no application was preferred for all these years. Learned trial court has very specifically mentioned that in pursuance to the appellate Court's order in Appeal No.3/11 with regard to appointment of Commissioner, the petitioner was granted an opportunity to move an appropriate application for appointment of Commissioner on 09.01.2013. In pursuance to that observation also, no application was preferred for all these years. The order dated 10.05.2017 reads as follows: ^^oknh ds }kjk fookfnr Hkwfe mldh iV~Vk'kqnk Hkwfe gS vFkok jkLrs dh Hkwfe dk Hkkx gS] blds Li"Vhdj.k gsrq dfe'uj fu;qDr djus dk fuosnu fd;k x;k gSA izdj.k vHkh rjnhnh lk{; oknh gsrq fu;r gSA izdj.k esa lk{; oknh rFkk lk{; izfroknh lekIr gks pqdh gSA izdj.k o"kZ 2005 ls yafcr gS rFkk vR;ar iqjkuk gSA oknh ds }kjk viuh lk{; lekIr gksus ds i'pkr~ rFkk izfroknh dh lk{; lekIr gksus ds i'pkr~ ;g izkFkZuk i= vR;f/kd foyEc ls is'k fd;k x;k gSA tgka rd ekuuh; vij ftyk ,ao ls'ku U;k;ky;] MhMokuk ds }kjk vihy laΠ3@11 esa dfe'uj fu;qDr djokus dk mYys[k fd;k x;k gS rks bl lanHkZ esa ;g mYys[kuh; gS fd mDr vkns'k Hkh fnuakd 09-01-2013 dks ikfjr fd;k x;k Fkk rFkk ml vkns'k esa Hkh ekuuh; U;k;ky; ds }kjk dsoy ek= ;g mYys[k fd;k x;k gS fd izkFkhZ viuh ckr dfe'uj fu;qDr djokdj vLFkk;h fu"ks/kkKk ds izdze ij izFke n`"V;k lkfcr dj ldrk Fkk] ftl laca/k esa lk{; dsoy ek= fopkj.k esa izLrqr dh tk ldrh gS rFkk gLrxr izdj.k esa lk{; ds nkSjku oknh ds }kjk bl lanHkZ esa dksbZ izkFkZuk i= is'k ugha fd;k x;k FkkA ekuuh; U;k;ky; dk vkns'k dsoy ek= vLFkk;h fu"ks/kkKk esa izFke n`"V;k ekeyk ls lacaf/kr FkkA fookfnr Hkwfe oknh dh iV~Vs'kqnk Hkwfe vFkok jkLrs dh Hkwfe gksus dk iz'u lk{; dk fcUnw gS tks fd oknh dks Lo;a viuh lk{; ls lkfcr djuk gSA ewy okn esa oknh viuh lk{; is'k dj pqdk gS rFkk lk{;oknh can gksus ds i'pkr~ dfe'uj fu;qDr djus dk dksbZ vkSfpR; izrhr ugha gksrk gSA izdj.k dsoy ek= izfroknh ds ftEes fook/kdksa dh gn rd oknh dh rjnhnh lk{; is'k djus gsrq yafcr gSA bl lanHkZ esa izkFkhZ dh vkSj ls izLrqr U;kf;d n`"Vkar rF;ksa dh fHkUurk ds dkj.k pLik ugha gksrs gSA vr% mijksDr foospukuqlkj izkFkhZ dk izkFkZuk i= Lohdkj fd;k tkuk U;k;ksfpr izrhr ugha gksus ls vLohdkj dj [kkfjt fd;k tkrk gSA i=koyh okLrs rjnhnh lk{; oknh fnukad 15-05-2017 dks is'k gksA** 9. In my considered opinion, the order dated 10.05.2017 suffers from no infirmity and the same does not call for any interference by this Court as it is settled position of law that Commissioner cannot be appointed for collection of the evidence in the matter. The suit is to be decided in the light of evidences which has been brought on record and the law point for which issues have already been framed. 10. Taking into consideration the totality of the facts and circumstances, I am not inclined to interfere in the order dated 10.05.2017. 11. Hence, there is no force in the writ petition and the same is therefore dismissed. No order as to costs.