A.K. Shrivastava, J:

1. This is defendants Second Appeal having lost from First Appellate Court since that Court has decreed the suit of plaintiff for restoration of possession and injunction.

2. No exhaustive statement of facts are required to be narrated for the disposal of this Second Appeal. Suffice it to say that a suit for restoration of possession and injunction has been filed by plaintiff/respondent on the averments that the suit property is part of the land which he bought from Deen Dayal.

3. The case of defendant in his written statement is that the suit property is part of the land which he purchased from Sudhir Shrivastava.

4. An application under Order 26, Rule 9 was filed by defendant in the learned trial Court on 12-5-2008 to get the land in question demarcated by appointing a suitable Commissioner. This application of defendant/appellant has been rejected by learned trial Court on 7-8-2008. The learned trial Court after framing necessary issues dismissed the suit of plaintiff. The First Appeal which was filed by him has been allowed by the impugned judgment and decree.

5. In this manner the Second Appeal has been filed by the defendant/appellant.

6. The appeal has been admitted on the following substantial questions of law :

"When there is a dispute about demarcation and identity of the suit property, the learned trial Court erred in substantial error of law in dismissing the defendants application under Order 26, Rule 9, Civil Procedure Code."

7. It has been put forth by Shri Tiwari, learned counsel for appellant that when there is a dispute of demarcation of the boundary it was incumbent upon the trial Court to issue commission by appointing a suitable Revenue Officer as a Commissioner to demarcate the property, since this has not been done, learned First Appellate Court has erred in substantial error of law in decreeing the suit of plaintiff.

8. On the other hand Shri Pendarkar, learned counsel for plaintiff has argued in support of the impugned judgment.

9. Having heard, learned counsel for parties, I am of the view that this appeal deserves to be allowed.

10. Regarding substantial question of law :-

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 26, 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. In this context I may profitably place reliance on two decisions of Supreme Court Shreepat v. Rajendra Prasad and others, (2000) 6 Supreme 389 and Haryana Wakf Board v. Shanti Sharup and others, (2008) 8 SCC 671 [LQ/SC/2008/1457] and the Division Bench of this Court in Durga Prasad v. Praveen Foujdar and others, 1975 MPLJ 801 [LQ/MPHC/1975/21] : 1975 JLJ 440.

11. The substantial question of law is thus answered in favour of the plaintiff and it is hereby held that learned First Appellate Court had erred in substantial error of law in decreeing the suit of plaintiff without issuing commission to get the property demarcated, so that it may be identified.

12. The impugned judgment and decree passed by two Courts below is hereby set aside and the case is remanded back to the learned trial Court to issue Commission by appointing an employee of Revenue Department not below the rank of Revenue Inspector to get the property in dispute inspected and demarcated for its identification. The said revenue employee shall also examine the sale deed of both the parties and would give its opinion to learned trial Court that the property in dispute is the part of plaintiff or defendant. The parties shall be free to cross-examine the said revenue employee if necessary and may also adduce evidence on this limited point. The application filed under Order 26, Rule 9, Civil Procedure Code by defendant/appellant stands allowed. The Registry is hereby directed to send the record of learned trial Court so as to reach that Court on or before 30th April, 2011. The parties are hereby directed to appear before learned trial Court on 2nd May, 2011 and fresh notice in this regard shall not be issued to them. On this date learned trial Court shall appoint a Commissioner as directed in this judgment and thereafter on the basis of the evidence placed on record shall pass a fresh judgment. Needles to say the trial Court shall decide the suit as early as possible preferably within a period of six months from 2nd May, 2011.

13. This appeal is accordingly allowed with no order as to costs.

Appeal allowed.