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2010 DIGILAW 229 (JK)

Budha Ram v. Rajeev Sharma

2010-04-30

GH.HASNAIN MASSODI

body2010
1. The present Civil Revision calls in question the order of learned Sub Judge, Jammu in an application titled Rajiv Sharma v. Budha Ram under Order 26 CPC whereby the learned trial judge has appointed a commissioner to demarcate the subject matter of the suit titled as above, awaiting disposal before the trial judge. 2. In order to understand the controversy it would be advantageous to have an overview of the case set up by the parties before the learned trial judge. 3. The respondent in the present revision petition instituted a suit seeking possession of a strip of land said to have been forcibly taken into possession by the present petitioner and annexed the same with his plot of land on which a three storeyed building is constructed by the petitioner/defendant. The respondent/plaintiff also prayed for grant of permanent injunction/decree restraining the petitioner/defendant from interfering with rest of the land owned by the respondent/plaintiff. The respondent/plaintiffs case before the learned trial judge was that a plot of land measuring 12 marlas along with house standing thereon was transferred by its owners in favour of the respondent/plaintiff by a sale deed executed and registered on 30.4.2001. The respondent/plaintiff insisted that towards the southern side of the aforesaid property an open strip of land measuring 7x25 was also transferred by the owners in favour of the respondent plaintiff. The respondent/plaintiff pleaded that the petitioner/defendant encroached upon a strip of land measuring 3 = x 25 out of the aforementioned 7 x 25 open land in 1979-1980. The respondent/plaintiff pleaded that he became aware of the encroachment made by the petitioner/defendant only when the previous owner of the property came from Bombay to Jammu and informed the respondent/plaintiff about the same. The petitioner/defendant has since filed his written statement in the main suit denying the arguments made in the plaint and even issues have been settled and some evidence recorded. 4. The respondent/plaintiff during the trial in the main suit on 28.5.2008 filed an application for appointment of commissioner for making measurement of the land in actual possession of the petitioner/defendant on which a three storeyed building has been constructed. The case set up by the respondent/plaintiff in the application was that the matter in controversy in the suit would be easily decided by appointing a commissioner for making the measurement of the land in possession of the defendant/petitioner. The case set up by the respondent/plaintiff in the application was that the matter in controversy in the suit would be easily decided by appointing a commissioner for making the measurement of the land in possession of the defendant/petitioner. It was insisted that the court had ample powers to issue direction and get the property measured. 5. The application was resisted by the petitioner/defendant in his objections filed on 4.10.2008 on the grounds that the petitioner/defendant had not forcibly taken possession of the strip of land measuring 3-1/2 x 25 as averred in the plaint and that the petitioner/defendant was in possession of a plot of land on the spot including the strip of land in question in his own right as a tenant thereof and taken over its possession under sale deed executed in his favour by the owners on 4 May 1991. The effort, according to the petitioner/defendant, to get commissioner appointed was only to create evidence in support of the case set up by the respondent/plaintiff before the trial court. The petitioner/defendant reiterated his stand that the subject matter of the suit rightfully belonged to the petitioner/defendant and insisted that the commissioner cannot be appointed to collect the evidence for either of the parties. 6. The learned trial judge on perusal of the pleadings was not impressed by the case set up by the petitioner/defendant in opposition to the application for appointment of commissioner. Learned trial judge after noticing and analyzing Order 26 Rule 9 CPC against the backdrop of the judicial pronouncements on the subject allowed the application appointing Govind Raina, advocate, as commissioner and asked the commissioner to demarcate the land over which three storeyed house has been constructed by the petitioner/defendant in presence of both the parties and to submit his report on 27 May 2008. 7. The order dated 13.12.2008 appointing the commissioner is assailed on the ground that it suffers from material irregularities and is therefore liable to be set aside. It is prayed that the respondent/plaintiff having failed to prove his case intends to create evidence in his favour on the strength of the report which is submitted by the commissioner. 7. The order dated 13.12.2008 appointing the commissioner is assailed on the ground that it suffers from material irregularities and is therefore liable to be set aside. It is prayed that the respondent/plaintiff having failed to prove his case intends to create evidence in his favour on the strength of the report which is submitted by the commissioner. It is pleaded that the sale deed executed in favour of the respondent/plaintiff does not make mention of the strip of land in question and thus the respondent/plaintiff cannot claim the suit land on the strength of the sale deed claimed to have been executed by erstwhile owners on 30.4.2001 in his favour. The learned trial judge oblivious to the requirements of Order 26 Rule 9 CPC is said to have not recorded reasons in support of the impugned order. It is pleaded that the observation made by the trial court that spot inspection by the commissioner and demarcation of the property in question would not amount to collection of evidence for either of the parties was erroneous and unsustainable. Learned trial judge is said to have not made proper appreciation of all the facts and also not to have made proper application of law to the fats projected before the trial court. 8. Heard and considered. 9. Order 26 Rule 9 CPC gives discretion to the court to issue a commission to such person as it things fit, direct him to make local investigation where the court deems such an investigation to be requisite or proper for the purpose of elucidating any matter in dispute. The aforesaid provision thus provides an important tool to the court to get the matter in controversy elucidated without allowing the parties to drag the proceedings endlessly. Order 26 CPC like other such tools with which a civil court is equipped under the code of civil procedure is intended to facilitate expeditious disposal of case and to adjudicate upon the matter presented before the court in hassle-free manner. It is a fact of common knowledge that the courts feel reluctant to make efficient use of such tools and instead exhibiting an attitude of apathy and indifference surrender initiative to the parties. Trial judge has not to deal with the proceedings pending before the court in lifeless manner allowing the parties to take control of the lis rather than exercising his control over the proceedings. Trial judge has not to deal with the proceedings pending before the court in lifeless manner allowing the parties to take control of the lis rather than exercising his control over the proceedings. Trial judge is expected to play a proactive role to do complete justice between the parties with proper dispatch and not allow either of the parties to hijack or thwart the proceedings and delay or sidetrack the proceedings at the cost of court and his adversary. Trial court is in true sense of the term a third party to a lis pending before it and its object is and must be to see that the proceedings are taken to a logical conclusion as early as possible so that others standing in queue get a chance to voice their grievance and the proceedings are not allowed to clog the system. Order 26 Rule 9 is a tool that must be made use of as frequently as facts and circumstances permit so that instead of depending upon the parties to elucidate the matter in controversy which the parties at times are not interested in, the matter is got elucidated through a commission. Having said so let us shift the focus though briefly, to the controversy before the trial court. 10. It seems to have been the admitted position of the parties that neither sale deed executed on 4.5.1991 by erstwhile owners in favour of the petitioner/defendant nor the sale deed executed by erstwhile owners on 30.4.2001 made a mention of the strip of land measuring 7x25 that as per the averments made in the pleadings was open at the time the sale transactions were made. The respondent/plaintiffs case before the trial court is that though the sale deed dated 30.4.2001 executed in his favour did not make mention of the said strip of land yet the suit land was owned by previous owners and is to be taken to have been conveyed/transferred in their favour. The petitioner/defendant disputes the claim and insists that as per the recitals of the sale deed dated 30.4.2001 the strip of land on which the respondent plaintiff has an eye was not handed over to the respondent plaintiff. The petitioner/defendant makes a feeble effort to insist that the disputed strip of land stands conveyed/transferred in his favour under sale deed dated 4.5.1991 though express claim in this behalf is not set up. The petitioner/defendant makes a feeble effort to insist that the disputed strip of land stands conveyed/transferred in his favour under sale deed dated 4.5.1991 though express claim in this behalf is not set up. In the circumstances it was appropriate for the trial court in the first instance to know the respective positions of the parties as regards area in their actual possession on the spot. It is only when the position in this regard was elucidated that the trial court would proceed to see whether the strip of land in question was owned by erstwhile owner who alienated her property vide sale deed dated 30.4.2001 in favour of the petitioner or whether the petitioner/defendant had rightfully come into possession of the disputed strip of land in the wake of sale deed dated 4.5.1991. 11. So viewed, the appointment of commissioner for demarcating the land was appropriate in the facts and circumstances of the case, though learned trial judge ought not to have restricted such demarcation only to the extent of the land in possession of the petitioner/defendant. The better course for the learned trial judge in the facts and circumstances of the case was to ask the commissioner to measure the land in possession of the parties respectively and submit his report revealing explicitly the area in possession of the parties. This would help the trial court to get the matter elucidated and thereafter proceed to determine of rights of the parties over the disputed strip of land. Be that as it may the learned trial court has rightly placed reliance on law laid down in AIR 2004 Madras 419. The argument advanced by the learned counsel for the petitioner/defendant that the appointment of commissioner amounted to collection of evidence in favour of the respondent/plaintiff is devoid of any merit. The reliance placed on AIR 1988 Orissa 30 and AIR 2007 Karnataka 133 and 2002 (1) SLJ 266 is of no help to the petitioner/defendant. The appointment of commissioner in the present case cannot be said to amount to collection of evidence for either of the parties or the respondent/plaintiff. All that the learned trial judge intended was to get the matter in controversy elucidated and thereafter to proceed to determine the rights of the parties. The appointment of commissioner in the present case cannot be said to amount to collection of evidence for either of the parties or the respondent/plaintiff. All that the learned trial judge intended was to get the matter in controversy elucidated and thereafter to proceed to determine the rights of the parties. The reliance on law laid down in AIR 1996 Madras 33 and 2004 (1) JKJ 545 (HC), on the other hand is well placed. 12. For the reasons discussed there is no reason to hold that the learned trial judge exercised jurisdiction not vested in it by law or to have acted in exercise of its jurisdiction illegally or with material irregularity resulting in failure of justice. However, having regard to the controversy involved in the suit the commissioner appointed by the trial court shall also measure the area in possession of the respondent/plaintiff and submit his report detailing the areas with dimensions in possession of the parties respectively. Resultantly the order dated 13.12.2008, subject matter of the present revision petition, is upheld with above modifications. The civil revision is disposed of accordingly.