JUDGMENT Biswanath Rath, J. - This is a Civil Miscellaneous Petition involving a challenge to the impugned order dated 8.2.2018 passed by the 4th Additional Civil Judge (Sr.Divn.), Cuttack in C.S. No.271 of 2017(I) on rejection of an application under Order 26 Rule 9 of C.P.C. by the trial court at the instance of the plaintiff, a partnership firm. 2. Plaintiff-Petitioner filed a suit bearing C.S. No.271 of 2017(I) for declaration of the plaintiff as irrevocable licensee to occupy the suit schedule property and also for permanent injunction against the opposite party (defendants in the trial court). Plaintiff put forth a case that in 1993 the plaintiff was in search of space/godown for its business purpose. Late Shyamal Prasad Goenka on coming to know about the requirement of the plaintiff offered the suit land. Accordingly, a deed of agreement was executed between both the parties and thereafter the plaintiff taking possession of the suit land on rent at Rs. 5000/- per month. It was averred therein that the suit property consisted of some dilapidated tin shed and some vacant space. Under the agreement, looking to its business requirement, the plaintiff was also allowed to develop the same. Rent agreement entered between the parties was renewed from time to time and the last such agreement was executed on 3rd day of January, 2012. In the meantime Sahyamal Goenka died and the defendants succeeded in his place as Goenka's legal representative. Looking to the increase in the business of the plaintiff, the defendants granted licence to the plaintiff for making additional construction at its own fund and to use such construction for business purpose. The plaintiff took the stand that it has developed the vacant land and constructed the sheds of permanent nature incurring huge expenses and it has neither breached nor violated any terms and conditions of the deed. The period of last agreement was till 31st December, 2017. It is when the plaintiff was running with its business peacefully, all of sudden evil design crept in the mind of the defendants, who accordingly issued a notice under Section 106 of the Transfer of Property Act intimating therein that the plaintiff's tenancy to come to an end from the date of expiry of the agreement dated 31.12.2016. Finding no resolution of the dispute, the plaintiff was forced to undertake the suit proceeding with the prayers as indicated already. Finding no resolution of the dispute, the plaintiff was forced to undertake the suit proceeding with the prayers as indicated already. Referring to Clause-8 in the agreement, the plaintiff contended that the lesser would allow 10 feet wide space on eastern side of the workshop and 6 feet wide space in front of the workshop as common space. But since on the eastern side of the plot no.26 no vacant space was available, the defendants agreed to allow the plaintiff to utilize the northern portion of the plot no.26 for the purpose of parking of the vehicles. It is further alleged that unfortunately, the defendants with ulterior motive tried to restrain the petitioner, the plaintiff from utilizing the vacant space at the northern portion of plot no.26. Upon receipt of notice in the suit, the defendantO.Ps. filed written statement along with counter-claim denying the claim with regard to open space by the plaintiff with a flat denial. It is finding the flat denial of the defendants on the request of the claim of the plaintiff filed an application under Order 26 Rule 9 of C.P.C. seeking appointment of Civil Court Commissioner for identification of certain dispute claiming to be relevant for the purpose of effective adjudication of the suit. The application being opposed was decided on contest with a dismissal order by the trial court finding place at Annexure-6. 3. Sri G.Mukherji, learned counsel for the plaintiffpetitioner assailing the impugned order submitted that the impugned order is against sound judicial principle and also against the purpose involving the provision. Sri Mukherji, learned counsel for the petitioner taking help of the provision under Order 26 Rule 9 of C.P.C. and the decisions of this Court in K. Raghunath Rao vrs. Smt. Tumula Jailaxmi , (1988) AIR Orissa 30 and Mahendranath Parida vrs. Purnananda Parida & others , (1988) AIR Orissa 248 submitted that the trial court not only failed in appreciating the provision requiring appointment of Commission but also failed in taking into account the decisions of this Court as referred to herein above. On the premises of the decisions referred to herein above, Sri Mukhurji, learned counsel for the petitioner claimed for interference by this Court in the impugned order and thereby setting aside the same. 4. Sri S.Nanda, learned counsel for the defendantO.Ps. On the premises of the decisions referred to herein above, Sri Mukhurji, learned counsel for the petitioner claimed for interference by this Court in the impugned order and thereby setting aside the same. 4. Sri S.Nanda, learned counsel for the defendantO.Ps. on the other hand while taking this Court to the denial of the defendants in the written statement contended that for the admission of the petitioner involving the disputed land, there remains nothing to be identified involving the suit property. Sri Nanda also submitted that the purpose behind the Order 26 Rule 9 of C.P.C. is required to be utilized only in the case of controversy between the parties with regard to any identification. Sri Nanda thus contended that therefore, there is no application of Order 26 Rule 9 of C.P.C. to the case at hand. For the petitioner's heavily relying on the pleadings at paragraphs-3, 4 & 5 of the plaint and for the petitioner's heavily relying on certain terms and conditions in the agreement referred to, identification dispute, if any, that can be resolved through oral evidence. Taking this Court specifically to Clause-4 of the agreement dated 3.1.2012, Sri Nanda, learned counsel for the O.Ps. submitted that for the Clause only giving permission for temporary sheds remains contrary to the pleadings of the plaintiff-petitioner in paragraphs-3 & 5 of the application under Order 26 Rule 9 of C.P.C. Sri Nanda, therefore, urged that for the denial of the defendants in the matter of grant of any permission for additional construction, unless the plaintiff is in a position to establish that there is a Clause contained permitting the petitioner to go for additional construction in terms of Clause-4 of the agreement deputing a Commission at this stage would be amounting to collection of evidence. It is on the premises of application under Order 26 Rule 9 of C.P.C. having no substance, Sri Nanda, learned counsel taking this Court to the observations of the trial court in the rejection of the application under Order 26 Rule 9 of C.P.C. submitted that there has been right appreciation of the issue involved therein leaving no scope for this Court interfering in the same. Sri Nanda, learned counsel for the O.Ps. further to substantiate his contentions for the support of law placed before this Court the decisions in Rajendra Sa vrs. Sri Nanda, learned counsel for the O.Ps. further to substantiate his contentions for the support of law placed before this Court the decisions in Rajendra Sa vrs. Nadeem Ahmed & another (C.M.P. No.369/2018 disposed of on 20.4.2018), Dhondiram Niivrutti Pawar & others vrs. Laxman Khashaba Pawar & others (W.P.(C) No.1196/2017 disposed of on 23.1.2018) and Mohammed Ashraf & others vrs. Harish Gujaran & others (W.P.(C) No.31886/2016 disposed of on 9.2.2018). It is on the premises of the petitioner having no substance of law opposing the move of the opposite parties. 5. Considering the rival contentions of the parties, this Court looking to the pleading of the plaintiff-petitioner in paragraphs-4, 5, 8 & 15, this Court finds, the plaintiff has the following pleadings involving the construction/additional construction and also on his claim on defendants allowing the plaintiff to utilise the northern portion of the plot no.26 for the purpose of parking of vehicles. "4. That, the plaintiff constructed a factory shed at considerable cost as per design approved by the appropriate authority. 5. That, since the plaintiff's business has gradually grown up for which the constructed area was insufficient/inadequate for the plaintiff's business. Considering the long length of relationship, the defendants granted licence to the plaintiff for making additional constructions with his own fund and use it for his business purpose. The relevant clauses i.e. Clause Nos.4, 5, 8, 9 & 10 of the agreement dtd. 3.1.2012 related to such permission. 8. That, although the agreement was executed from time to time but the tenancy/lease hold rights/ license is of a permanent nature as acting upon the document of conveyance the plaintiff has raised permanent structures on the suit property with the consent of the land lords. Further support to this the construction made by this plaintiff on the license given by the defendants make the license irrevocable in view of Section-60(b) of the Indian Easements Act. 11. That, after receiving the aforesaid notice the plaintiff immediately sent a reply to the said notice on 29.11.2016 wherein the plaintiff clearly stated that the suit schedule property was initially leased out by Sri Shyamal Prasad Goenka, defendants predecessor in interest, who inducted the plaintiff as tenant/licensee, in respect of the suit schedule property. The property demised consisted of a few constructed rooms and vacant land. With the permission of the licensor/lessor plaintiff have spent more than Rs. The property demised consisted of a few constructed rooms and vacant land. With the permission of the licensor/lessor plaintiff have spent more than Rs. 31,60,000/- (rupees thirty one lakhs sixty thousand only) in raising permanent constructions on the vacant land and in the process the value of such development of the property has considerably enhanced with the rise in price index. The next constructions were necessary for housing the work shop for which lessee/licensee was taken." Similarly, looking to the written statement/counter-claim at the instance of the defendant-opposite parties herein, this Court in response to the pleading in the aforesaid paragraphs in the plaint, in paragraphs-10, 11, 14 & 21 objected the claim of the plaintiff as follows :- "10. That the averments made in para 4 of the plaint are false and denied by these defendants. It is absolutely false to say that the plaintiff constructed a factory shed at considerable cost as per design approved by the appropriate authority. In reply it is stated that the plaintiff has taken the suit premises for storing scooters motor cycles and for work shop for the said two wheelers as per clause No.3 of the agreement not for any factory nor he has constructed any factory shed on the suit land of these defendants. The plaintiff has erected a temporary shed by using old rusted iron pillar, rusted G.C. Sheet and A.C. sheets which were brought from their old work shop at Jobra Road, Cuttack after eviction then that premises. 11. That the averments made in para 5 of plaint are absolutely false and purely imaginary. It is totally false to say that since the plaintiff's business has gradually grown up for which the constructed area was insufficient/inadequate for plaintiff's business and it is also false to say that considering the long length of relationship, the defendants granted license to the plaintiff for making additional constructions with his own fund and use it for business purpose. It is also absolutely false and misleading to say that clause Nos.4, 5, 8, 9 and 10 of the agreement dt.3.1.2012 related to such permission. In reply it is stated that the plaintiff is not a licensee rather a lessee under the defendants i.e. a monthly tenant at will, which tenancy begins from the first day of each month and ends on the last day of the said month which was continued for five years. In reply it is stated that the plaintiff is not a licensee rather a lessee under the defendants i.e. a monthly tenant at will, which tenancy begins from the first day of each month and ends on the last day of the said month which was continued for five years. There is a written lease Agreement which clearly speaks that the plaintiff is lessee and the defendants are lessor and the plaintiff has admitted in the said written agreement that he is a lessee i.e. a monthly tenant at will. There is not a single word granting license of the suit land and godown to the plaintiff. There is also no ingredient of license to be claimed by plaintiff in the said agreement. That the purpose of the agreement dt.3.1.2012 is to grant monthly lease to the tenant which is a lease deed admitted by both the parties. In the said agreement license was not granted to the plaintiff for running his shop. Hence the plaintiff is stopped by law of stopped to claim itself stopped as a licensee. Instead of vacating the suit premises he is taking such false plea to linger the matter, for it's illegal occupation. 14. That the averment made in para 8 of the plaint are false, misleading and denied. It is false to say that the lease agreement/license is of a permanent nature and it is false to say that as acting upon the document of conveyance the plaintiff has raised permanent structures on the suit property with consent of the landlords. It is totally false to submit that further support to this the constructions made for this plaintiff on the license given by the defendants make the license irrevocable in view of section 60(b) of the Indian Easement Act. In reply it is submitted that the true intention of the lease agreement dt.3.1.2012 between the parties is to let out the suit property to the plaintiff as a monthly tenant and in the said agreement it was clearly mentioned that the lessee may put temporary tin shed for keeping two wheelers. There is no permission to plaintiff tenant by the landlords to construct any permanent construction. So also the tenant has not constructed any permanent construction with any masonry work over the suit property. There is no permission to plaintiff tenant by the landlords to construct any permanent construction. So also the tenant has not constructed any permanent construction with any masonry work over the suit property. The plaintiff's clever drafting cannot camouflage the real intention of the parties, which has been stated in the above said agreement. Hence no license was granted to the plaintiff and the lease granted in favour of plaintiff is not a permanent in nature, it was only for 5 (five) years. There is no relationship of licensor and licensee in between the plaintiff and defendants. Hence there is no question of claiming permanent license over the suit property. The section 60(b) of the Indian Easement Act, 1882 is not applicable in this case and section 52 of the said Act does not define the agreement at dt.3.1.2012 is a deed of license. The terms and conditions of the lease deed dt.3.1.2012 does not define it as a license deed and does not come under the purview of the section 52 of the Easement Act. Rather this matter will be governed by Transfer of Property Act. Mere pleadings are not evidences, the plaintiff is put to strict proof of the same. 21. That the facts stated in para 15 of the plaint are false and denied. The facts stated relating to measurement of wide space are to be proved by the plaintiff. But it is absolutely false to say that the defendants agreed to allow the plaintiff to utilise the Northern portion of plot No.26 for the purpose of parking vehicles. In reply it is stated that there was no agreement to let out the Northern Portion of the plot No.26 for the purpose of parking space." 6. It is at this stage, taking into consideration the application under Order 26 Rule 9 of C.P.C. at the instance of the plaintiff, this Court finds, the plaintiff while seeking identification through the Commission in exercise of power under Order 26 Rule 9 of C.P.C. in paragraphs-3, 4 & 5 submitted as follows :- "3. That, the plaintiff constructed a factory shed at considerable cost as per design approved by the appropriate authority. 4. That, since the plaintiff's business has gradually grown up for which the constructed area was insufficient/inadequate for the plaintiff's business for which he required more space. That, the plaintiff constructed a factory shed at considerable cost as per design approved by the appropriate authority. 4. That, since the plaintiff's business has gradually grown up for which the constructed area was insufficient/inadequate for the plaintiff's business for which he required more space. Considering the long length of relationship, the defendants granted license to the plaintiff for making additional constructions with his own fund and use it for his business purpose. 5. That, the aforesaid averment is denied by the Defendants stating that there is no such construction, where as in clause nos.4, 5, 8, 9 & 10 of the agreement dated 3.1.2012 it has been clearly mentioned that the plaintiff may erect additional constructions with his own fund and use it for his business purpose." It is also irrelevant to take note of the fact that even though the plaintiff filed an application under Order 26 Rule 9 of C.P.C., there is absolutely no question framed to be investigated through the appointed Commissioner. Looking to the schedule of the property, it appears, the pleadings in the application and the schedule of property, it appears in paragraph-6 there has been some indication on the identification aspect. From reading of paragraph-6, this Court observes, the intention of the plaintiff is to depute a Commission to visit the site to ascertain the construction aspect and to submit a report. Looking to the background involving the claim of identification of the particular aspect, this Court finds, when the plaintiff, vide the plaint claimed regarding its undertaking additional construction on the basis of Clause-4 of the agreement and also use of certain portion to the northern side of the disputed plot as parking space. For the provision in the agreement and for the flat denial of the defendants on the issue of additional construction as well as permission of the defendants to the plaintiff on the aspect of use of vacant area to the northern side of the dispute plot no.26, this Court here finds, the case of the plaintiff-petitioner heavily rests on its satisfaction of such claim considering the extent of permission in the Clause-4 of the agreement. It is at this stage, this Court finds, the provision at Order 26 Rule 9 of C.P.C. reads as follows :- "Order 26 Rule 9 of C.P.C.-Commissions to make local investigations- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court : Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules." 7. For the heavy burden lying on the plaintiff to establish its claim on the issue of additional construction as well as parking space to the northern side of the disputed plot based on the condition in Clause-4, unless the parties entering into evidence, it becomes difficult on the part of the trial court to realize the identification aspect at this stage of the suit. Further looking to the claim and the rival-claim of both the parties and for the restrictions contained in Order 26 Rule 9 of C.P.C. for deputing a Commission at particular stage, this Court is of the opinion that sending a Commission at this stage of the matter will be amounting to collection of evidence, which is not permissible in the eye of law. 8. Perused the impugned order. Keeping in view the contentions and the rival contentions of the respective parties, this Court for the observations made therein finds, there is no infirmity in the impugned order. Therefore, this Court is not inclined to interfere in the impugned order but however observes that in the event after conclusion of evidence from both the sides and on entering into the argument if the court feels that the identification issue still unresolved, it may permit the plaintiff-petitioner to file an application under Order 26 Rule 9 of C.P.C. for consideration of the request of the petitioner therein. For the observations as well as the findings made by this Court, there is no requirement for this Court to go to the decisions cited by the learned counsel for the petitioner being based on different situations. For the observations as well as the findings made by this Court, there is no requirement for this Court to go to the decisions cited by the learned counsel for the petitioner being based on different situations. The Civil Miscellaneous Petition stands dismissed without interference in the impugned order. No cost.