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2009 DIGILAW 1838 (RAJ)

Kesar v. Laxman @ Laxminarain

2009-08-17

G.K.TIWARI

body2009
TIWARI, M.—This is a revision petition under Section 230 of the Rajasthan Tenancy Act, 1955 (in short, 'the Act') against the order dated 1.8.2008 of Sub-Divisional Officer, Piplu. 2. The facts, in brief, are that during the course of an application under Section 212 of the Act for grant of temporary injunction against the non-petitioners, the petitioner filed an application for summoning report of site inspection of the disputed land. This application for appointing Commissioner and summoning of site-inspection-report was rejected by Sub-Divisional Officer Piplu vide his impugned order dated 1.8.2008 aggrieved against which the petitioners have filed this revision petition. 3. I have heard the learned counsels for both the parties. 4. The learned counsel for the petitioners has stated that the impugned order of Sub-Divisional Officer is non-speaking order in which he has rejected the application without assigning any reason, so it should be set aside according to 2009(1) RLW (Raj.) 424. The learned counsel for the petitioners cited 2008(1) RRT 234 stating that a request for appointment of commissioner should not be rejected. 5. Opposing the contentions of the petitioners, the learned counsel for the non-petitioners has pleaded that in the application for grant of temporary injunction parties have to prove their prima facie possession and the evidence of possession cannot be collected through the Court by appointing Commissioner on calling any report of site inspection. Besides this, the impugned order is an interim order against which revision is not maintainable. It was also argued that it is the sole discretion of the Court whether to appoint Commissioner or call for the report site inspection or not. This discretion cannot be hindered in the revisional jurisdiction. The learned counsel cited 1994 RRD 778, 2002 RRD 313, 1993 RRD 277 and 2007(1) RRT 374. = RLW 2007(2) RJ 861. 6. I have given thoughtful consideration to the rival contentions, perused the impugned order and gone through the record available on the file. 7. In an application filed under Section 212 of the Act for grant of temporary injunction during pendency of a regular revenue suit parties themselves have to prove their prima facie possession on the disputed land. The evidence of possession on the disputed land cannot be collected through the agency of Court. It is sole discretion of the concerned trial Court whether to appoint Commissioner for obtaining report of site or not. The evidence of possession on the disputed land cannot be collected through the agency of Court. It is sole discretion of the concerned trial Court whether to appoint Commissioner for obtaining report of site or not. This discretion of the trial Court cannot be interfered with in exercise of revisional jurisdiction. The citation of 2008(1) RRT 234 is about a matter under Order 26 Rule 9 of the Civil Procedure Code (C.P.C.) in which construction work on the disputed site was to be ascertained not the physical possession on the land, whereas in the instant case the petitioners have specifically requested to ascertain and report about the possession of the petitioner on the disputed land. This ascertainment of possession on the disputed land cannot be done through the Court; this is for the parties to prove, making out prima facie case in their favour on the basis of prima facie evidence. As such this citation does not apply. As far as plea of the petitioners about non-speaking nature of the impugned order is concerned, the application of the petitioners filed before the trial Court is very clear about it that only one specific request is made before the Court, which is about summoning report of the site inspection about the possession of the petitioners on the disputed land which the petitioners are allegedly holding as an ancestral property. This specific request of the petitioners is not allowed by the trial Court meaning thereby that the trial court has not considered it necessary in its discretion to summon the report of site inspection about the possession on the disputed land which, obviously, parties have to prove. 8. It is also worthwhile to specify here that an order of rejection of an application filed for appointing commissioner and summoning report of site inspection with regard to ascertaining possession on the disputed land in a matter of temporary injunction under Section 212 of the Act, is purely an interim order and it is not covered under Section 230 of the Act as 'a case decided' to invoke revisional jurisdiction. Against such interim order no revision is maintainable under Section 230 of the Act. 9. In view of the foregoing discussion, the revision is dismissed being not maintainable. Pronounced.