existing condition of the property so that if the same is subjected later on to any change, deterioration or mischief by any of the parties or by any other agency or reason, that can be known by the Court if and when required. Vide Kalandi Swain v. Braja Kishore [AIR 1980 Ori 98]. Ultimately, the fact in dispute shall have to be decided by the Court only on the basis of the material produced by the respective parties which is either further elucidated or explained fully by means of a report of the Commissioner. However, the appointment of Commissioner appears to be not permissible either under Order 29, Rule 9 or under Order 39 Rule 7 of the Code for collecting evidence. From a perusal of the impugned orders, it is obvious that the Commissioner was appointed only to note down the physical features, to draw the rough sketch and to take photographs, if necessary. Therefore, the apprehension of the revision petitioners that it is for the purpose of collection of evidence appears to be not real. Even otherwise, the Court will refrain from using such reports for the purpose of deciding the main issue in controversy except to elucidate the fact in dispute after obtaining full information in respect thereof. I, therefore, see no illegality or irregularity that has been committed by the Court in having passed the impugned orders.”
