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2011 DIGILAW 2059 (RAJ)

Bhikha Ram v. Naina Ram

2011-09-22

G.K.TIWARI

body2011
Dr. TIWARI, M.—This revision petition, filed under Section 230 of the Rajasthan Tenancy Act, 1955 (in short `the Act'). is directed against the impugned order dated 31.3.2008 of Assistant Collector (Sub-Divisional Officer) Balotra. 2. The brief facts of the case are that the non-petitioners, during the course of pendency of a regular suit in the court of Assistant Collector Balotra, filed an application under Sec. 212 of the Act for the grant of temporary injunction against the petitioners in respect of the suit land. Assistant Collector Balotra while registering the application of Sec. 212 of the Act, issued an ex-parte ad-interim injunction order, and at the same time summoned report of the site inspection of the disputed land from Naib Tehsildar Jasol vide his impugned judgment dated 31.1.2008, aggrie-ved against which the petitioners have preferred a revision in this Court. 3. I have heard the learned counsels of both the parties. 4. The learned counsel for the petitioners contended that on the very first hearing on the application of temporary injunction, the trial Court not only issued interim ex-parte stay order but also illegally summoned report of the site inspection in respect of the suit land. It was submitted that the possession on the disputed land has to be proved by the respective parties: agency of the court cannot be used for collecting evidence of possession by appointing a commissioner and asking for commissioner's site report. The learned counsel cited 2011 RRT 91, 2008 RRD 193, 2007 RRT 943 and 2000 WLC (Raj.) (UC) 186 in support of his argument. The learned counsel also contended that any use of the commissioner's site report as an evidence of possession would result in failure of justice, while can be set aright in revision. The learned counsel cited 2000 DNJ (SC) 151 and 2003 DNJ (SC) 755 to support his contention. The learned counsel pressed for setting aside of the impugned order of Assistant Collector Balotra. 5. Opposing the contentions of the petitioners, the learned counsel for the non-petitioners pleaded that the impugned order of Assistant Collector is an interim order and as such it is not a revisable order. It was also contended that the appointment of commissioner is a discretionary power of the trial court which cannot be interfered with in exercise of revisionary jurisdiction. Opposing the contentions of the petitioners, the learned counsel for the non-petitioners pleaded that the impugned order of Assistant Collector is an interim order and as such it is not a revisable order. It was also contended that the appointment of commissioner is a discretionary power of the trial court which cannot be interfered with in exercise of revisionary jurisdiction. Assistant Collector has rightly called for the report of the site as objective report of the commissioner would help the court in reaching correct conclusion. It was pleaded that trial Court has already received commissioner's report against which the petitioners have raised objections. Since the compliance of the impugned order dated 31.1.2008 has already been made, this revision has become infructuous. Citing 2011 RRT (1) 29, 2004 RRD 295 and 2010 (1) DNJ (Raj.) 343 in support of his contention, learned counsel requested for rejection of the revision petition. 6. I have given thoughtful consideration to the rival contentions, perused the impugned order and gone through the material on record. 7. Perusal of the court file of the Assistant Collector Balotra shows that on the very first hearing of the application filed under Section 212 of the Act for the grant of temporary injunction. Assistant Collector issued an ex-parte injunction order: and simultaneously ordered, ex-parte, for summoning of report of the site inspection of the disputed land from Naib Tehsildar Jasol. Perusal of the application submitted by the non-petitioners in the trial Court, shows that commissioner's report is sought for determining possession on the disputed land. It has been consistently held by this court as well as by Hon'ble High Court of Rajasthan that when there is a dispute regarding possession on the suit land, it is for the parties to prove their rival claims of possession; agency of court cannot b used to collect evidence of possession by appointment of a commissioner. In this regard pronouncements of this court as reported in 2011 (1) RRT 91, 2008 RRD 193 and 2007(2) RRT 943 are relevant wherein a consistent ratio is propounded that a revenue court cannot appoint commissioner for collection of evidence with regard to possession on the disputed land. 8. As far as the argument of the learned counsel for the non-petitioners about the impugned order being an ad-interim order, is concer-ned; the impugned order of Assistant Collector can be split into two parts. 8. As far as the argument of the learned counsel for the non-petitioners about the impugned order being an ad-interim order, is concer-ned; the impugned order of Assistant Collector can be split into two parts. Part-I of this order pertains to grant of interim stay order for a limited period-which, of course, is not revisable. But the other part of the impug-ned order is about summoning of the report of the commissioner about possession on the disputed land- which cannot be said to be interim as it is conclusive in regard to the summoning of the commissioner's report which would have material impact on the factual merit of the case without parties marshalling of evidence. Evidently it is an illegal exercise of jurisdiction committing material irregularity, and as such covered under Section 230(c) of the Act entailing exercise of revisional jurisdiction by this Court. 9. In view of the foregoing discussion, the revision partially succeeds and the impugned order dated 31.1.2008 of Assistant Collector Balotra is set aside to the extent of appointment of Naib Tehsildar Jasol as a commissio-ner for summoning of the report about the disputed land. If commissioner's report is already received in the court, the same may be ignored. Pronounced.