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2023 DIGILAW 2108 (RAJ)

Jethmal Jhanwar v. Jagdish Prasad

2023-11-16

ARUN MONGA

body2023
ORDER : Mr. Arun Monga, J. - Assailed herein is an order dated 16.03.2015 passed by Additional District and Session Judge No. 2, Bikaner, vide which the application filed by the plaintiff-respondent no. 1 for appointment of Commissioner was allowed. 2. Succinct facts first, as pleaded in the instant petition. 2.1. Respondent no.1-plaintiff filed a civil suit before the court below for the partition of immovable property stating that Smt. Surja Devi, mother of the parties, purchased a residential plot at Aguna Bass, Ward No. 21, Nokha, Bikaner by way of registered sale deed dated 26.07.1963. She was the sole owner of aforesaid land in question. It is further averred in the plaint that following the mother's death, the plaintiff is entitled to a 1/8th share of the land in question. Therefore, the suit for partition has been filed. 2.2. The petitioner-defendant submitted a written statement to the plaint and denied the averments made therein. It is stated that the aforesaid land in question has been purchased by the petitioner-defendant using his own income in the name of his mother. Since, the family of the petitioner-defendant was very poor, he went to Assam at the age of 15 to work. It is also stated that his mother, Smt. Surja Devi executed a will dated 21.05.1994 in his favour. 2.3. After framing the issues, both parties have led their respective evidence. 2.4. After completion of evidence, the case was fixed for final arguments on 24.11.2014. Subsequently, the plaintiff requested time for final arguments on 24.11.2014, 17.12.2014, and 13.01.2015, and the case was fixed for 30.01.2015. 2.5. After availing numerous opportunities for final arguments, counsel for the plaintiff-respondent no. 1 suddenly filed an application one fine day for appointment of Commissioner to get a Mauka Report. 2.6. Learned trial Court, vide order dated 16.03.2015, allowed the application filed by the plaintiff-respondent No. 1 for appointment of Commissioner. Hence, the instant writ petition. 3. Heard. 4. Learned counsel for the petitioner-defendant argues that the trial Court has, on the basis of conjectures and surmises, wrongly allowed the application filed by the plaintiff-respondent No. 1 for appointment of Commissioner, especially during the stage of final arguments. Hence, the instant writ petition. 3. Heard. 4. Learned counsel for the petitioner-defendant argues that the trial Court has, on the basis of conjectures and surmises, wrongly allowed the application filed by the plaintiff-respondent No. 1 for appointment of Commissioner, especially during the stage of final arguments. It is further argued that the learned trial Court has committed an error of law in allowing the application during the stage of final arguments and the purpose of the plaintiff-respondent No. 1 to file the present application at such a stage is to collect evidence, which is not permissible in law. 4.1. In support of his contentions, learned counsel for the petitioner-defendant places reliance upon Union of India & Anr. v. M/S Kripal Industries Raising Nagar [1998 (2) WLC Raj.] to contend that learned trial Court is vested with discretion to appoint Commissioner, but such discretion should not be exercised where the point which is required to be referred to Commissioner can conveniently be substantiated by evidence presented by the parties during the trial itself. 4.2. Learned counsel for the respondents opposes the prayer made by learned counsel for the petitioner and contends that the learned Court below has rightly passed the impugned order and the same does not warrant any interference. 5. It appears that what transpired in the mind of the learned trial Judge that it is imperative that a Commissioner be appointed to ascertain as to who all are residing in the property in question. 6. I am unable to convince myself with the aforesaid reason. It is irrelevant for the purposes of deciding the suit for partition of immovable property as to who is in physical possession thereof. What is to be seen is whether or not the plaintiff and the defendants, who claim to have a joint title and rights in the property, are entitled to seek partition in accordance with the shares to which they are stakeholders, subject, of course, to their proving their joint share. 7. Local Commissioner cannot be appointed with the objective of creating evidence in favour of one of the parties, that too at such belated stage when the case is fixed for final arguments. The dispute is qua joint title and extent share in the property, which has to be proved by respective parties standing on their own legs, and they have already adduced their respective evidence in the trial. 8. The dispute is qua joint title and extent share in the property, which has to be proved by respective parties standing on their own legs, and they have already adduced their respective evidence in the trial. 8. As an upshot, writ petition is allowed and the impugned order is set aside. The application seeking appointment of Commissioner under Order 26, Rule 9 is dismissed. Trial to proceed further. 9. Pending application(s), if any, shall also stand disposed of.