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Rajasthan High Court · body

2022 DIGILAW 2719 (RAJ)

Shanta Devi v. Pushpa Devi

2022-11-07

KULDEEP MATHUR

body2022
JUDGMENT Kuldeep Mathur, J. - By way of this petition, the petitioner-plaintiffs have prayed for following reliefs: "1. This writ petition may kindly be allowed and the impugned order dated 16.01.2018 and 20.02.2018 (Annexure-5 & 6) may kindly be quashed and set aside and the application filed under Order 26 Rule 9 of CPC may kindly be allowed. 2. Any other writ, direction or order which is deemed to be just and proper in the circumstances of this case may kindly be passed in favour of the petitioners. 3. Costs of the writ petition may kindly be awarded in favour of petitioners." 2. Briefly stated facts of the case are that a suit for permanent mandatory injunction bearing Civil Case No. 7/2014 was filed with an application under Order 39 Rule 1 and 2 of CPC by the petitioner-plaintiffs praying that the respondents-defendants may be restrained from creating any disturbance in their title and possession over the property. During the pendency of the suit, the petitioner-plaintiffs filed an application under Order 26 Rule 9 and 10-A of CPC seeking appointment of Tehsildar, Girwa as Commissioner for locating the exact nature and measurements of land through scientific measures by fixing boundaries of the suit property. 3. In the reply, respondent Nos. 3 and 4 submitted that the petitioner-plaintiffs had filed a civil suit for grant of perpetual injunction claiming ownership and possession over the land in dispute on the basis of sale agreement, which does not confer any title in their favour. It was further submitted that the petitioner-plaintiffs have illegally trespassed over the land belonging to UIT and raised construction of a wall with a height of 7-ft. without obtaining permission, amounting to illegal construction. It was asserted that a site inspection had been conducted on 26.08.2013 by the concerned Patwari in which he found the petitioner-plaintiffs to be in possession of land in excess to the khatedari land. Further, illegal construction has been raised by encroaching upon the land of the Trust for which cases have been registered. 4. The learned trial court vide impugned orders dated 16.01.2018 and 20.02.2018 rejected the applications filed by the petitioner-plaintiffs under Order 39 Rule 7 read with Order 26 Rule 9 of CPC and Order 26 Rule 10-A of CPC respectively. Further, illegal construction has been raised by encroaching upon the land of the Trust for which cases have been registered. 4. The learned trial court vide impugned orders dated 16.01.2018 and 20.02.2018 rejected the applications filed by the petitioner-plaintiffs under Order 39 Rule 7 read with Order 26 Rule 9 of CPC and Order 26 Rule 10-A of CPC respectively. The trial court in its order dated 16.01.2018 opined that appointment of commissioner for the purpose of elucidating the matter in dispute is not necessary because dispute regarding title over the land cannot be decided by way of appointment of commissioner. It was also opined that commissioner cannot be appointed for the purpose of collecting evidence because the onus to collect and produce evidence rests on the party itself. The trial court in the order dated 20.02.2018 observed that the petitioner-plaintiffs have already constructed a house as well as a boundary wall on the suit property, therefore, there is no dispute with regard to demarcation or identification of the land. The only question that requires adjudication in the suit is the ownership of disputed land. The trial court noticed that the application under Order 39 Rule 7 r/w Order 26 Rule 9 CPC had already been rejected vide order dated 16.01.2018 therefore, another application under Order 26 Rule 10-A CPC could not be accepted. 5. Learned counsel for the petitioner-plaintiffs vehemently submitted that the dispute involved in the civil suit pertains to measurement of the land in dispute and the same can be resolved by appointing commissioner to make scientific or technical investigations. Learned counsel further submitted that trial court committed an error in passing the impugned orders as it failed to consider that scientific investigations would provide actual demarcation and measurements of the land in dispute for ensuring that no encroachment has taken place. Further, the Commissioner's report cannot be treated as evidence and therefore, no prejudice would be caused to the respondent-defendants. Counsel placed reliance on the following: 1. Shreepat v. Rajendra Prasad and Ors., (2000) 7 JT 379 , 2. Yesabrao s/o. Rangrao Lokhande v. Maroti s/o. Late Nagan Bitewar, 2004 (1) ALL MR 909, 3. Shri Saunsthan Gokarn Partagal Jivottam Mutt v. Shri Narayan Raghunath Dessi, 2019 (2) ALL MR 588, 4. Smt. Laxmi Devi v. Jodhpur Development Authority, Jodhpur through its Secretary, JDA, Jodhpur, Rajasthan, S.B.C.W.P. No. 4521/2017. 6. Yesabrao s/o. Rangrao Lokhande v. Maroti s/o. Late Nagan Bitewar, 2004 (1) ALL MR 909, 3. Shri Saunsthan Gokarn Partagal Jivottam Mutt v. Shri Narayan Raghunath Dessi, 2019 (2) ALL MR 588, 4. Smt. Laxmi Devi v. Jodhpur Development Authority, Jodhpur through its Secretary, JDA, Jodhpur, Rajasthan, S.B.C.W.P. No. 4521/2017. 6. Per contra, learned counsel for respondent-defendants submitted that in the present writ petition, two separate orders rejecting two different applications have been challenged which ought to have been challenged by way of separate proceedings, therefore, the present writ petition is not maintainable. It was further submitted that the petitioner-plaintiffs have come with the case that they are in legal possession of the disputed property whereas, the case of the respondent-defendant is that the petitioner-plaintiffs have illegally trespassed and encroached upon the land belonging to them. It was further submitted that a site inspection had already been conducted by the concerned Patwari on 26.08.2013 wherein, the petitioner-plaintiffs have been found to be in illegal possession of the land more than the khatedari land. It was submitted that the applications were filed before the trial court only with a view to collect evidence through appointment of commissioner though, the burden to collect and produce the evidence lies on them. 7. Heard learned counsel for the parties and perused the material available on record. 8. Admittedly, in order to determine whether there had been encroachment over the disputed land, a site inspection was conducted by the Patwari on 26.08.2013, in which the petitioner-plaintiffs were found to be in illegal possession of land in excess to the khatedari land. It was also noticed that illegal construction has been raised on the suit property. The petitioners-plaintiffs have pleaded before the trial court that they are in legal peaceful possession of the disputed land and have not encroached upon any land belonging to respondents-defendants. 9. In the considered opinion of this Court, since the revenue authorities have already identified the land involved in the suit for perpetual mandatory injunction, an order for scientific or technical survey to identify the correct measurements of land cannot be passed particularly when the application filed under Order 26 Rule 10-A CPC does not disclose as to what kind of scientific/technical investigation is required to decide the dispute. In the orders impugned, the trial court has clearly recorded that local investigation or scientific/technical report is not necessary for the purpose of elucidating any matter in dispute. The provisions of Order 26 Rule 10-A of CPC cannot be permitted to be used as a tool by the parties concerned to create evidence in their favour. 10. In the result, the present writ petition is dismissed. No order as to costs.