Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 1363 (RAJ)

Kewal Chand Samdariya HUF v. Jitendra Singh

2013-07-26

VINEET KOTHARI

body2013
JUDGMENT 1. - The petitioner/plaintiff has approached this Court aggrieved by the order dated 12.6.2013 (Annexure-10) of learned trial Court of Additional Civil judge (junior Division) and Judicial Magistrate, No. 2, jodhpur Metropolitan, in Civil Misc. Case No. 125/2013, Kewal Chand Samdariya HUE v. Jitendra Singh & Ors ., whereby considering the temporary injunction application as well as application filed under Order 39, Rule 7 Code of Civil Procedure, 1908 (for short, hereinafter referred to as 'CPC'), the learned trial Court had granted temporary injunction restraining the defendants/respondents from interfering with the possession of the plaintiff/respondents from interfering with the possession of the plaintiff/petitioner and also directed to maintain status quo of the suit premises/land, however, on the application filed by the respondent/ defendants under Order 39, Rule 7 C.P.C. the learned trial Court has appointed the Commissioner, namely, Sh. Naresh Kumar, Advocate, to prepare a report including the photographs further directing the presence of concerned Patwari, Gram Panchayat Gujrawas, Tehsil and District: Jodhpur in respect of Khasra Nos. 198, 199 (admittedly belonging to defendant/respondents) and Khasra Nos. 200, 201 and 202 (admittedly belonging to the plaintiff/petitioner) and submit a report in this regard to the Court. 2. Being aggrieved by the said impugned second part of the order dated 12.6.2013 passed on the application of the defendants/respondents under Order 39, Rule 7 C.P.C., the plaintiff/petitioner has approached this Court by way of present writ petition under Article 227 of the Constitution of India. 3. Mr. N.M. Lodha, Sr. Advocate assisted by Mr. V.D. Dadhich, learned counsel for the petitioner/plaintiff submitted that in the application filed by the defendants/respondents under Order 39, Rule 7 C.P.C. itself, in Para 2 of the said application, the defendants have admitted that the plaintiff is in possession of his own land of Khasra Nos. 200, 201 and 202, which land was got converted under Section 90B of the Rajasthan Land Revenue Act, 1956, (for short, hereinafter referred to as 'Act of 1956') from the Land Conversion Officer (S.D.O.) and the plaintiff had constructed common boundary wall and the defendants were in their possession of Khasra Nos. 198, and 199, which is said to be adjacent to the land of aforesaid Khasras No. 200, 201 and 202 of the plaintiff. Mr. 198, and 199, which is said to be adjacent to the land of aforesaid Khasras No. 200, 201 and 202 of the plaintiff. Mr. N.M. Lodha, therefore, urged that in view of the admitted position of possession and ownership, there was no occasion for the learned trial Court to appoint the Commissioner for ascertaining the boundaries of respective lands/khasra(s) of the parties and thus the appointment of the Commissioner to submit report in the presence of the concerned Patwari, is uncalled for. He also drew the attention of the Court towards the provisions of Sections 111 and 128 of the Act of 1956, which deal with the disputes relating to boundaries in agricultural land and the Land Records Officer only is authorized under the said provision alone. is entitled to decide such disputes. He, therefore, submitted that on the application filed by the defendants, appointment of such Commissioner Advocate, who does not have any such powers under Sections 111 and 128 of the Act of 1956, could not have been made. 4. In support of his contentions, learned counsel for the petitioner relied upon the decision of this Court in the case of Prema Ram & Ors. v. Sint. Nannda Kunwar, reported in 2010(3) DNJ (Raj.) 1725 , wherein a coordinate bench of this Court held that where the purpose of filing application under Order 39, Rule 7 C.P.C. is to collect evidence in favour of petitioner/defendant, such application is liable to be rejected and factum of possession is required to be proved by the evidence; to be led by the concerned parties. 5. On the other hand, Mr. B.S. Jodha, learned counsel for the respondents/defendants relying upon the decision of this Court in the case of Shan.kar Lal v. Shri Narbada Shankar & Ors., reported in 2010(2) WLC 407 (Raj.) submitted that for deciding the temporary injunction application, a case of some mining dispute, this Court has directed the learned trial Court appoint Commissioner and take the latest position of the mining being done at the site so that the suit property could be preserved if considered necessary during the pendency of this suit. 6. 6. Having heard the learned counsels for the parties at length and having carefully perused the case-laws cited by the respective counsels, this Court is of the opinion that the learned trial Court has erred in appointing the Advocate Commissioner for obtaining report about the dispute as to the boundaries and exact location of the boundary of the aforesaid Khasra(s) in question constructed by the petitioner/plaintiff. 7. The provisions of Sections 111 and 128 of the Act of 1956 are reproduced below, which is clear in this regard and such dispute(s) can be decided only by Land Records Officer under the Act and not by the Commissioner of the Court. "Section 111. Decision of disputes as to boundaries.-(1) In case of any dispute concerning any boundaries, the land Records Officer shall decide such dispute, so far as possible, on the basis of the existing survey maps and, where this is not possible or such maps are not available, on the basis of actual possession. (2) If in the course of an inquiry into a dispute under this section, the land Records Officer is unable to satisfy himself as to which party is in the possession or it is shown that possession has been obtained by wrongful dispossession of the lawful occupants within a period of three months previous to the commencement of the inquiry, the Land Records Officer shall ascertain by summary inquiry who is the party best entitled to possession and shall then fix the boundary accordingly. Section 128. Boundary disputes.-All disputes concerning boundaries shall be decided by the Land Records Officer in the manner laid down in Section 111: Provided that applications in relation to boundaries of fields may be made to and disposed of by the Tehsildar in cases where there exists no dispute as to such boundaries but on account of the absence of proper boundary marks there is the likelihood of such a dispute arising." 8. Without ascertaining the exact boundaries of such Khasra(s), it cannot even be gone into whether the plaintiff or the defendants have encroached on each others land or not. This Court in the case of Rajasthan Housing Board v. Anna Rain & Ors., reported in 2013(1) DNJ (Raj.) 278 , dealing with these provisions has held as under: "15. Without ascertaining the exact boundaries of such Khasra(s), it cannot even be gone into whether the plaintiff or the defendants have encroached on each others land or not. This Court in the case of Rajasthan Housing Board v. Anna Rain & Ors., reported in 2013(1) DNJ (Raj.) 278 , dealing with these provisions has held as under: "15. In the considered opinion of this Court, the present writ petitions filed by the Rajasthan Housing Board are misconceived and deserve to be dismissed. Firstly, the entire basis of the Housing Board's case is that the 'Pattas' have wrongly been issued by the UIT, Jodhpur for Khasra No. 131 of village Sunthla, whereas, the fact is that 'Pattas' have been issued for the land of Khasra No. 130/2 and not for Khasra No. 131 at all and that too such 'Pattas' have been issued after taking due proceedings under Section 90-B of the Rajasthan Land Revenue Act. If there was any question of fact regarding boundary dispute which was required to be raised and decided, the same could only be done under the provisions of Sections 111 and 128 of the Rajasthan Land Revenue Act" 9. In view of aforesaid legal position, this Court is of opinion that the learned trial Court has erred in passing the second and impugned part of the order dated 12.6.2013 appointing the Commissioner under Order 39, Rule 7 C.P.C., and the same is liable to be set aside. Even though the learned trial Court has directed the presence of concerned Patwari also along-with Commissioner in the impugned Order, however, that does not give the directions the status of proceedings which could be appropriately instituted only tinder Sections 111 and 128 of the Act of 1956, as quoted above. 10. Therefore, the present writ petition filed by the petitioner/plaintiff deserves to be allowed and the impugned part of the impugned order dated 12.6.2013 appointing the Commissioner for the aforesaid purpose, is liable to be set aside. 11. Consequently, the present writ petition is allowed. The impugned part of the impugned order dated 12.6.2013 appointing the Commissioner for the aforesaid purpose is set aside. No order as to costs. A copy of this order be sent to the concerned parties and the learned trial Court below forthwith.Petition Allowed. *******