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2012 DIGILAW 464 (RAJ)

Shanu Baheti v. Municipal Council, Pali

2012-02-16

GOPAL KRISHAN VYAS

body2012
Hon'ble VYAS, J.—In this petition filed under Article 227 of the Constitution of India, the petitioner has prayed for quashing order dated 31.10.2011 passed by the Civil Judge (Jr. Dn.), Pali whereby the Trial Court allowed the application filed under Order 26, Rule 9 CPC and Order 39 Rule 7, read with Section 151, C.P.C. and appointed the Tehsildar, Pali as Commissioner to give report as per the revenue record of the disputed land. 2. Learned counsel for the petitioner submits that the plaintiff-petitioner preferred a suit for permanent injunction before the Civil Judge (Jr. Dn.), Pali because respondent No. 1 issued a public notice in which it is published that in the nearby area of Khasra Nos. 930, 932, 933, 954 and 961 there is a residential scheme of Municipal Council, Pali know as Gandhi Nagar Awasiya Yojana and land of Khasra Nos. 934 and 953 has been illegally included in the Mahaveer Nagar Yojana, in which, plot No. 754 of the petitioner is situated. The petitioner stated in the suit that after lapse of about 20 years of allotment made in favour of the plaintiff-petitioner by Mahaveer Grih Nirman Samiti, illegal notice was published by the Municipal Council, Pali whereas the petitioner-plaintiff is having valid patta in her favour. 3. The petitioner submitted all the relevant documents before respondent No. 1 and it is submitted by learned counsel for the petitioner that there is no illegality in the allotment made in favour of the petitioner-plaintiff. However, in March 2011 respondent No. 1 started construction of a distich near the plot of the petitioner treating the land as the land of the Municipal Council. The petitioner filed suit along with temporary injunction, notices were issued and, after issuance of the notice, written-statement and reply was filed and, thereafter, application under Order 26 Rule 9 and Order 39 Rule 7, read with Section 151, C.P.C. was filed by the respondent. The petitioner filed reply to the application and submitted that no Commissioner can be appointed because appointing any Commissioner for the purpose of ascertaining the correctness of the land from the revenue record is nothing but to grant an opportunity to the respondent Municipal Council to create evidence in their favour, therefore, there is no question of appointment of Commissioner to ascertain correctness of the situation of the land in question. The learned Trial Court after hearing both the parties allowed the application and Tehsildar Pali has been appointed Commissioner to give report as per the revenue record. 4. Learned counsel for the petitioner submits that order impugned dated 31.10.2011 whereby the Tehsildar, Pali has been appointed Commissioner is illegal because valid patta was issued in favour of the petitioner by the Mahaveer Grih Nirman Samiti after following the procedure land down in the rules for issuing patta. Therefore, instead of deciding the suit on the basis of evidence recorded in the suit the Trial Court has committed error in appointing Commissioner to get report of the land in question. 5. It is contended by learned counsel for the petitioner that the order passed by the Trial Court is unreasoned order because by this order the learned Trial Court has granted opportunity to create evidence in support to contention of the Municipal Council whereas as per settled law the party disputing the pleading must itself produce evidence, therefore, creating any evidence by an order of the Court is totally illegal. 6. Learned counsel for the petitioner invited attention of the Court towards judgments reported in AIR 1998 Raj. 224 , 1997 DNJ (Raj.) 452 and 2000 WLC (Vol. I) (Raj.) 186 and submits that this Hon'ble Court adjudicated in the above cases that no evidence can be created in favour of either of the parties by appointing any Commissioner by this Court, therefore, the order impugned suffers from gross illegality. 7. After hearing learned counsel for the petitioner, I have perused that plaint and written-statement filed alongwith the writ petition. 8. In this case, the main dispute is with regard to the situation of the land in question. The petitioner-plaintiff is claiming that his plot No. 754 was allotted by Mahaveer Grih Nirman Samiti in a scheme framed by the said Samiti for residential purposes in Khasra Nos. 930, 932, 933, 954 and 961 whereas Municipal Council, Pali issued notice that land of Khasra Nos. 934 and 953 measuring 53 bigha has been illegally included in Mahaveer Nagar Yojana and the petitioner's plot is situated upon the disputed land. 9. Learned Trial Court while allowing the application filed under Order 26 Rule C.P.C. appointed Commissioner to get correct situation of the land in question. 934 and 953 measuring 53 bigha has been illegally included in Mahaveer Nagar Yojana and the petitioner's plot is situated upon the disputed land. 9. Learned Trial Court while allowing the application filed under Order 26 Rule C.P.C. appointed Commissioner to get correct situation of the land in question. In my opinion, it is duty of the Court to decide the controversy in correct manner and for that purpose under Order 26 Rule 9, CPC there is power left with the Court to appoint Commissioner to ascertain correctness of the Act. Order 26 Rule 9 of the Civil Procedure Code reads as follows:- "9. Commissions to make local investigations.-In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter indispute or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules." 10. Upon plan reading Order 26 Rule 9, C.P.C. it is abundantly clear that during the trial if the Court deems a local investigation to be requisite for ascertaining market value or for elucidating any matter, the Court has power to appoint Commissioner to get report for the purpose of just decision in the case; meaning thereby, the whole purpose of inserting such provision is to give discretion to the Court for the purpose of investigation of particular fact by way of appointing Commissioner. Therefore, if any order is passed by the Trial Court for ascertaining correct position of the land in question, then, it cannot be said that any jurisdictional error has been committed by the Trial Court. 11. In this case, the Commissioner has been appointed to give report as per the revenue record, therefore, the ground raised by the petitioner is not sustainable for the purpose of the present controversy. The Trial Court has passed order, in which, there is no harm. 11. In this case, the Commissioner has been appointed to give report as per the revenue record, therefore, the ground raised by the petitioner is not sustainable for the purpose of the present controversy. The Trial Court has passed order, in which, there is no harm. Therefore, the judgments cited by learned counsel for the petitioner are based upon different facts of the respective cases whereas, in this case, the main dispute is with regard to situation of the land. Hence, No error has been committed by the Trial Court in passing the order impugned. In this view of the matter, there is no force in this writ petition. Therefore, while following the judgment of Hon'ble Supreme Court in the case of Shalini Shyam Shetty reported in (2010) 8 SCC 329 , I am not inclined to interfere in the impugned order. Accordingly, this writ petition is dismissed.