Malappa Bhikappa Birajdar vs Aamsidha Bhikappa Birajdar And ...
2022 Latest Caselaw 995 Bom

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ISM
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                         CIVIL APPELLATE JURISDICTION

                     CIVIL WRIT PETITION NO. 10596 OF 2019

      MALAPPA BHIKAPPA BIRAJDAR                    ....PETITIONER

              V/s.

      AAMSIDHA BHIKAPPA BIRAJDAR                   .....RESPONDENTS
      AND ORS

      Mr. Prasad P. Kulkarni for the Petitioner
      Mr. Ajit V. Alange for Respondent no. 1


                        CORAM :    NITIN W. SAMBRE, J.

                        DATE:      JANUARY 27, 2022.

      P.C.:

      1)      This Petition is by Defendant to R.C.S. No. 563/2019.

Respondent-Plaintiff took out aforesaid Suit thereby questioning the

order of the Mamlatdar passed under Section 5 seeking declaration

that the same is not binding. Further injunction is sought in relation

to use of a way and also mandatory injunction to re-fix electric

gadgets with other ancillary reliefs.

2) Vide impugned order dated 13/09/2019, the Trial Court under

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Exhibit 19, in exercise of powers under Order XXVI Rule 9 of Code of

Civil Procedure, 1908, appointed Court Commissioner with following

directions:

"01. Application is allowed for following purpose.

a) The court commissioner is appointed for inspection of suit property and disclosing correct situation appears in the suit property 1A with detail map

b) The Court commissioner shall inspect the suit property and the drip irrigation, pipeline situated therein and show existing situation and directions thereof on the spot with detail map.

2) The plaintiff to pay charges of commission work.

3) The parties shall suggest name of commissioner, who would carry out commission work as per order of court.

4) Parties shall take note thereof.

5) Issue letter accordingly."

3) Petitioner-Defendant while questioning the same, while drawing

support from the Judgment of this Court in the matter of Sanjay

Kisan Thorat Vs. Ramchandra Parsu Thorat 1 would urge that powers

for appointment of Court Commissioner cannot be passed so as to

1 [2018 (2) Mh.L.J. 954]

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collect the evidence. So as to substantiate his contentions, he has

relied on the very claim put forth by the Petitioner-Defendant in the

written statement, reply to the Exh. 19, so also observations of the

Trial Court. According to him, since the proceedings by way of

impugned order cannot be used for the purpose of collection of

evidence so as to strengthen the case of the Respondent-Plaintiff,

order warrants interference.

4) Counsel for the Respondent-Plaintiff would support the

impugned order.

5) With the assistance, I have perused the Plaint and prayers in

the aforesaid Suit. Parties to the Suit and Petition are related to each

other. Bhikappa Birajdar is blessed with two sons namely Aamsidha

and Akash. There appears to be oral partition executed as a

consequences of which parties were put into possession of their

individual share. Parties are at difference on the issue of right of a

way as a consequences of which Suit came to be filed after

Respondent-Plaintiff suffered an order under Section 5 of

Mamlatdars' Courts Act.

6) No doubt, during conduct of the proceedings under

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Mamlatdars' Courts Act, spot inspection was carried out, however,

one of the witness has not supported said spot inspection report

which is relied on by Mamlatdar for passing the order against the

interest of the Respondent-Plaintiff.

7) In the aforesaid background, being alive to the position of the

law, order of Mamlatdar is always subject to civil proceedings,

Plaintiff took out present proceedings for appointment of Court

Commissioner in a Suit for declaration and injunction.

8) While dealing with such prayer, the Trial Court was sensitive to

the fact that proceedings under Order XXVI Rule 9 of Code of Civil

Procedure, 1908 for appointment of Court Commissioner cannot be

used for collection of evidence, hence proceeded to analyze the

pleadings, prayer in the Plaint, stage of the Suit and proceeded to

order appointment of Court Commissioner. The Trial Court was of the

view that appointment of Court Commissioner is necessary for

deciding the issue brought before it by the rival parties. In such an

eventuality, the Court below, in my opinion was justified in negating

the contention of the Petitioner-Defendant that appointment of Court

Commissioner is with an intention to collect the evidence. The Trial

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Court while dealing with Suit claim is always armed with powers to

facilitate itself to take out recourse to procedure, in accordance with

law, for adjudication of the claim brought before it.

9) That being so, in my opinion, no case for interference in

extraordinary jurisdiction is made out.

10) Needless to clarify that report of the Court Commissioner is

always subject to scrutiny by the Civil Court as parties are at liberty

to lead their evidence in accordance with law.

11) Keeping such right of the parties in-tact, Petition stands

rejected.

[NITIN W. SAMBRE, J.]