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2019 DIGILAW 1888 (RAJ)

Ravindra Nath v. Piyush Kumar

2019-07-03

DINESH MEHTA

body2019
JUDGMENT : Dinesh Mehta, J. 1. By way of the present writ petition the petitioners have laid challenge to the order dated 04.01.2019, passed by the Additional District Judge, Banswara (hereinafter referred to as the 'trial Court'), vide which the petitioners' application under Order XXVI Rule 9 of the Code of Civil Procedure for appointing Revenue Authority to be a Commissioner, has been rejected. 2. Succinctly stated the facts appertain to the present writ petition are that the petitioners-plaintiffs filed a suit for possession against the respondent-defendant. By way of the suit aforesaid, the petitioners sought possession of his land situated in Khasra No. 356/41/2, which was allegedly in possession of the defendant. The defendant disputed the fact that he has raised his construction on the plaintiffs' land and took a stand that he has raised construction on Survey No. 328/41/1. 3. In view of the rival assertions regarding situation of the construction and the corresponding land, during pendency of the suit, the petitioners-plaintiffs moved an application dated 17.03.2018 and requested the trial Court to appoint Tehsildar as Commissioner to state the exact position of the disputed house whether the same is situated in Survey No. 356/41/2 or Survey No. 328/41/1. 4. The petitioners' aforesaid application was opposed by the defendant-respondent by contending that the plaintiffs have filed such application only with a view to collect evidence. 5. The petitioners' application came to be rejected by the trial Court vide its order dated 04.01.2019 inter alia observing that an earlier report prepared by the Commissioner on 19.04.2007 is available on record and the application filed by the plaintiffs under Order XXVI Rule 9 of the Code is simply with a view to collect evidence. 6. Mr. Maheshwari, learned counsel for the petitioners impugning the order dated 04.01.2019, passed by the trial Court contended that the trial Court has erred in rejecting the petitioners' application in a mechanical manner. He argued that the question as to whether the house has been constructed on the land belonging to the petitioners or the land belonging to the respondent-defendant, can be answered or examined only by a competent Revenue Authority and apprise the Court regarding correct position obtaining on the site that which of the survey numbers, the offending construction has been raised. It has further been submitted that except for the report of the competent Revenue Authority, neither the plaintiffs nor the defendant can lead appropriate evidence regarding situation of the land and/or the offending construction. 7. Mr. Devendra Sanwalot, learned counsel for the respondents supported the order passed by the trial Court and submitted that it is settled proposition of law that the Commissioner cannot be appointed for the purpose of collecting evidence. He argued that the defendant's construction has been raised on the land belonging to him and he has construction permission in relation to such land, which clearly proves that the construction, which has been raised by the defendant, is on the land covered by his title. 8. Upon appraisal of the arguments advanced by rival counsel and upon perusal of the material available on record, it is apparent that the real dispute between the parties lies in a narrow compass : "in which survey number the offending construction has been raised". Both the parties have their own conflicting stand. When the dispute is regarding the identification of the land, the same cannot be easily resolved, but for the assistance of competent revenue authority. 9. In considered opinion of this Court the report of the Tehsildar or any other competent authority would steer clear the doubt or dispute and would bring the truth to fore. 10. The aforesaid view of mine is supported by the judgment of this Court rendered in Smt. Saraswati Devi Joshi vs. State & Ors., SB Civil Writ Petition No. 1436/2016 decided on 11.07.2017. 11. As an upshot of above discussions, the writ petition succeeds. The order under challenge passed by the trial Court on 04.01.2019 is quashed and set aside. 12. The Tehsildar, Tehsil Banswara is, hereby, appointed as a Commissioner to report : "whether the offending construction raised by the defendant is situated in Survey No. 356/41/2 or in Survey No. 328/41/1. The requisite Tehrir for appointment of Commissioner shall be issued by the trial Court in furtherance of the present order. 13. Needless to observe that the Tehsildar concerned will go on the site, after giving due notice to both the parties and would visit the site as far as possible in their presence.