ORDER
Pratap Singh, J.
1. This revision is directed against the order passed in LA. No. 2538 of 1991 in O.S. No. 348 of 1986 on the file of District Munsif, Tiruppur, in which the learned District Munsif has allowed the petition filed by the respondent under Order 26, Rule 9, C.P.C. praying for appointment of a Commissioner to inspect the suit properties and file his plan with report.
2. Short facts are: The respondent has filed the suit for declaration that the plaintiff is the absolute owner of the suit properties and injunction. The suit properties are the lands as well as a well. It is opposed by the defendants, namely, the revision petitioners herein. While so, the respondent had filed I.A. No. 2533 of 1991 praying for appointment of a Commissioner to inspect the suit property and to file a plan with his report and it was opposed by the revision petitioners herein and after hearing the parties, the learned District Munsif has passed an order allowing the petition and appointing an advocate as Commissioner for the aforesaid purpose. Aggrieved by the same, the respondents in the court below have come forward with this civil revision petition.
3. Learned Counsel for the revision petitioners would submit that on two grounds he is attacking the impugned order. Firstly, no ground what so-ever has been stated by the court below for allowing the petition though the petition was stoutly opposed by the respondents and secondly, no ground has been made out for appointment of a Commissioner to inspect the suit properties and file a plan with report. Per contra, learned Counsel appearing for the respondent would submit that the suit properties are inclusive of a well situated in Survey No. 172/3 and positive averments have been made in the plaint that the said well was dug in the plaintiffs portion in the said survey number and it has been disputed in the written statement and while so, the inspection by a Commissioner appointed by the court and his report with regard to the said aspect of the case will help the court in deciding the matter in issue and in the circumstances, the order of the court below is correct. He would further submit that as per Order 26, Rule 9 no reasoning need be given by the court below for allowing the application and if it is satisfied that would suffice.
4. I have carefully considered the submissions made by rival counsels. Regarding the first objection taken by the learned Counsel for the revision petitioners that the court below has not considered the objections put forth by the revision petitioners, it will be better to extract the relevant portion of the order of the court below to appreciate this contention. The lower court has passed the order as follows:
Heard, Both counsels Mr. P.V. Jayaraj, Advocate is appointed as an advocate-Commissioner for the petition mentioned purpose….
It is unfortunate that the court below had not at all considered the objections raised by the revision petitioners herein who are the respondents in the court below, but has passed such summary cryptic order, as mentioned above. Though Order 26, Rule 9 does not in so many explicit words states so, the said Rule clearly points out that the Judge must deem that an advocate-Commissioner is necessary. As to why the court deems so should be made explicit by considering the objections raised before the Judge. Without expressing any reason as to, why a Commissioner should be appointed, in the face of the objections raised, a summary order as above is clearly erroneous. But any way on that ground alone this revision petition cannot succeed because of the view which I am taking namely, that the order is not to the prejudice of the revision, petitioners, in which case alone, the revision under Section 115, C.P.C. would lie.
5. As has been pointed out by learned Counsel appearing for the respondent, in para 4 of the plaint specific averments had been made that about ten years back within the plaintiffs portion in Survey No. 172/3 the plaintiff and the defendants have dug a new well and they are baling out water in the well through an oil engine by turn system and that the well was dug entirely within the plaintiffs portion. In the written statement, in paragraph 6, the above claim has been disputed in clear terms. In paragraph 6 of the written statement, it is averred that it is false to state that the well was dug in the portion of the plaintiff or that the lands were not measured properly at the time of the sub-division. Again in paragraph 7 of the written statement it is averred that the well was not dug in the plaintiff’s portion but lies entirely in the lands of the defendants and the plaintiff has no well of his own either, in common or of his own. While so, this petition is filed for appointment of a Commissioner to inspect the suit property and file a plan with report. In paragraph 3 of the affidavit filed in support of the application, it is stated that in the written statement the defendants are even disputing the extent of lands that the petitioner is entitled to as per the documents and in possession and enjoyment and a Commissioner’s report and plan will reduce much of the oral evidence. In paragraph 6 of the counter affidavit filed by the revision petitioners herein, they would say that the petitioner cannot measure the suit properties alone and all the properties covered under the partition deed have to be measured. If the revision petitioners want it, they can file a petition for appointment of a Commissioner for the said purpose and press it. Simply because they want it like that the petitioner’s claim cannot be negatived Though the Commissioner cannot decide the dispute, his inspection and report would help the court in deciding the dispute. In the circumstances, no prejudice will be caused to either party. I am clear that the order of the court below cannot be interfered with in revision.
6. In view of the above, the civil revision petition fails and shall stand dismissed.