HIGH COURT OF JUDICATURE AT ALLAHABAD CIVIL REVISION No. - 41 of 2025 Court No. - 54 HON'BLE ANIL KUMAR-X, J. 1. Heard learned counsel for the revisionist and learned counsel for the revisionist. 2. This revision has been filed by the revisionist against the impugned judgment and order dated 12.12.2024 passed by the learned Additional Civil Judge (Junior Division), New Court No. 1, Moradabad, in Original Suit No. 849 of 2018, Mohammad Naqi Vs. Babu and Others. 3. Briefly stated, a suit for permanent injunction was initially filed by the respondent/plaintiff, which was subsequently amended, and an additional prayer seeking possession of the disputed land was also incorporated by the plaintiff. During the pendency of the suit, an application under Order XXVI Rule 9 CPC was filed by the revisionist before the learned trial court seeking appointment of a Survey Commission for the disputed land. The said application seeking appointment of a Survey Commission was dismissed by the learned trial court, against which the present civil revision has been preferred. 4. Learned counsel for the revisionist submitted that, in the suit, the plaintiff has sought an injunction in respect of Gata Nos. 169, 170, 171 and 172, whereas Gata Nos. 157 and 173 belong to the revisionist. It was submitted that, unless a Survey Commission is appointed in respect of the disputed lands, which are contiguous Versus Counsel for Revisionist(s) : Manoj Kumar Sharma Counsel for Opposite Party(s) : Tawvab Ahmed Khan Smt. Jubaida Khatoon .....Revisionist(s) Mohammad Naqi And Another .....Opposite Party(s) and adjoining to each other, the identification as well as the actual position of the parties over the disputed property would never be brought before the Court. The learned trial court overlooked the pleadings as well as the application filed by the revisionist and dismissed the said application, holding that the dispute between the parties was not concerned with the identity of the land but was a dispute pertaining to ownership arising out of the sale deed. It was submitted that the finding recorded by the learned trial court while dismissing the application for appointment of a Survey Commission is unsustainable, as the trial court failed to consider that, in the absence of a Survey Commission, the identity of the properties would remain vague and the respondent, in the garb of seeking an injunction in respect of his own land, may also seek a decree of permanent injunction in respect of Gata Nos. 157 and 173, belonging to the revisionist/defendant. It was further submitted that the matter has been pending for a considerable period and the suit has been fixed for judgment in the month of October. 5. Learned counsel for the respondent, on the other hand, submitted that the application seeking appointment of a Survey Commission filed by the revisionist/defendant introduces a material fact by mentioning Gata Nos. 157 and 173, with regard to which there is no pleading in the written statement filed by the revisionist/defendant. It was submitted that the disputed Gata Nos., of which the respondent is the owner, are the very Gata Nos. in respect of which he has sought permanent injunction as well as possession. Therefore, there is no occasion or purpose for directing a Survey Commission in respect of the disputed property. 6. Heard learned counsel for the parties and perused the order passed by the learned trial court. 7. It is apparent that the dispute between the parties is with regard to possession over the disputed land, while the ownership thereof has not been disputed. So far as possession over the disputed land is concerned, the same may be determined by the learned trial court on the basis of the evidence led by the parties CLRE No. 41 of 2025 2 during the course of the trial. If the plaintiff is unable either to prove his possession over the disputed property or to establish the identity of the disputed property by its boundaries, the same would be to his detriment and the suit would fail. The respondent/plaintiff, therefore, cannot suffer any prejudice on this account. 8. Revision under Section 115 CPC does not lie against rejection of an application for issue of commission. A trial court or appellate court is vested with the discretion, under Order 26 Rule 9 CPC, to issue or not to issue a commission for local investigation and no party to the suit can claim as of right to get a commission issued for the purpose of local investigation. The Supreme Court has in the cases of Javed Ali vs. Ahmed Urooz, 2014 (102) ALR 105 (All), Ram Ishwar vs. Laxmi Narain, 2007 (66) ALR 195 (All), M/s Kisanotthan Co-operative Housing Society, Lucknow vs. O.P. Srivastava, 2007 (25) LCD 919 (All— L.B.) , Lekh Raj vs. Muni Lal, AIR 2001 SC 996 and Dr. K.C. Tandon vs. IXth Additional District Judge, 1998 (33) ALR 267 (All) has reiterated the same. 9. Accordingly, the revision is dismissed. September 29, 2026 Mukesh CLRE No. 41 of 2025 3 (Anil Kumar-X,J.) Digitally signed by :- MUKESH SRIVASTAVA High Court of Judicature at Allahabad