Gujarat High Court

Kirtilal Uttamlal Panchal vs Soni Champaben Manilal on 15 November, 2021

Bench: B.N. Karia

     C/SCA/712/2016                                 JUDGMENT DATED: 15/11/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 712 of 2016


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE B.N. KARIA

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                         KIRTILAL UTTAMLAL PANCHAL
                                    Versus
                      SONI CHAMPABEN MANILAL & 2 other(s)
==========================================================
Appearance:
MS ARCHANA R ACHARYA(2475) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Respondent(s) No. 3
NOTICE SERVED(4) for the Respondent(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                                Date : 15/11/2021

                               ORAL JUDGMENT

1. Rule returnable forthwith. Leaned advocate Mr. S.P.

Majmudar waives service of notice of rule for and on behalf of

respondent No.3.

C/SCA/712/2016 JUDGMENT DATED: 15/11/2021

2. By way of preferring this petition, present petitioner who is

the original plaintiff before the trial court in Regular Civil Suit

No.26 of 2011, has challenged the legality and validity of the

order dated 22.04.2015 passed by learned 7 th Additional Civil

Judge, Palanpur below application Exh.41 preferred by the present

petitioner under Order 26 Rule 9 as well as Order 39 Rule 7 read

with Section 151 of the Code of Civil Procedure.

3. Short facts of the present case may be referred as under:

The plaintiff purchased the suit property through power of

attorney holder of Mr. Kantilal Jangamal Vaghela and Ms.

Valiben Kantilal Vaghela by registered sale deed No.23 on

02.01.2002. Name of the plaintiff was recorded in revenue records

vide M.E. No.16895 and since year- 2002, he was in peaceful

possession of the suit land. In the year-2003, plaintiff filed a

Regular Civil Suit No.324 of 2003 against Mr. Kantilal Jangamal

Vaghela and Ms. Valiben Kantilal Vaghela before the Civil Court,

Palanpur for declaration and permanent injunction in respect of

the suit property. Alongwith the suit, plaintiff filed an application

for interim injunction below Exh.5 praying to restrain the

defendants from putting up any construction on the suit land and

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to demolish the constructions of Ordi put up by the defendants

over the suit land. Learned Civil Judge, Palanpr, vide order dated

15.12.2004, was pleased to allow the application Exh.5 directing

the defendants therein from putting up any construction in the suit

land. The suit was decided by the learned Additional Senior Civil

Judge, Palanpur vide order dated 13.08.2007 in favour of the

plaintiff/petitioner directing the defendants not to put up any

construction on the suit land and to demolish the wall constructed

on the suit land. The court observed that power of attorney dated

01.01.2002 executed by Mr. Kantilal Jangamal Vaghela and Ms.

Valiben Kantilal Vaghela in favour of Mr. Bhikhabhai

Virchandbhai Panchal was neither challenged nor any evidence

was produced to establish that the said power of attorney was

forged, and therefore, the power of attorney dated 01.01.2002 was

genuine one. However, suit land was already sold in favour of the

plaintiff and decree was passed in his favour, They said Mr.

Kantilal Jangamal Vaghela and Ms. Valiben Kantilal Vaghela sold

the suit property in favour of the respondent No.1 by registered

sale deed No.3645, which was entered in the revenue record on

15.10.2009. Again on 07.01.2010, respondent No.1 sold the suit

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property to respondent No.2 by registered sale deed No.138 and

entry was made in the revenue record on 16.01.2010. The plaintiff

challenged the aforesaid entry before the learned Deputy Collector

in R.T.S. Appeal No.228 of 2010. Again on 05.02.2011, the suit

property was sold to respondent No.3 by respondent No.2 by

executing registered sale deed No.731. On 09.02.2011, plaintiff

filed Regular Civil Suit No.26 of 2011 before the learned Principal

Senior Civil Judge against the respondent Nos.1 and 2 restraining

for demolition of construction, permanent injunction and not to

disturb the possession of the plaintiff by defendants. Plaintiff also

filed an application below Exh.6 under Order 26 Rule 9 of the

C.P.C. for appointment of Court Commissioner and for drawing

panchnama of the suit land. The learned trial court was pleased to

allow the application Exh. 6 vide order dated 21.02.2011 and court

commissioner carried out the panchnama on 26.02.2011.Court

Commissioner also submitted his report on 28.02.2011 stating that

there is construction of walls and pillars in the suit land and

construction activity is going on. The learned Additional Civil

Judge, Palanpur was pleased to pass an order to maintain status

quo of the suit land as existed at the time of drawing the

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panchnama on 31.03.2011. The plaintiff filed an application

Exh.17 on 02.05.2011 for joining the respondent No.3 as party

defendant No.3 in Regular Civil Suit No.26 of 2011. Execution

Petition No.22 of 2011 was also filed by the plaintiff on

10.10.2011 wherein the Executing Court directed the defendants

i.e. Mr. Kantilal Jangamal Vaghela and Ms. Valiben Kantilal

Vaghela not to put up any construction on the suit land and to

demolish the wall constructed on the suit land. An application

Exh.17 preferred by the plaintiff to implead respondent No.3 as

party defendant No.3 was allowed by the trial court on

09.12.2012. The plaintiff filed an application below Exh.41 under

Order 26 Rule 9 read with Order 39 Rule 7 as well as under

Section 151 of the C.P.C on 18.12.2012 for drawing the

panchnama through Court Commissioner and preparing map

stating that defendants have prepared to dig the land for

construction. They are going to change the situation of the suit

land. Description of the suit land was given in the application

Exh.41 and requested to prepare a panchnama in detail as well as

the map by appointing the court commissioner. The learned Trial

Court rejected the application Exh.41 filed by the plaintiff vide

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order dated 22.04.2015. Hence, this petition.

4. Heard learned advocate Ms. Archana Acharya for the

petitioner and learned advocate Mr. S.P. Majmudar for the

respondent No.3.

5. It is submitted by learned advocate for the petitioner that the

impugned order passed by the trial court rejecting the application

Exh.41 for appointment of the court commissioner is clearly

against the provisions under Order 26 Rule 9 of the C.P.C. That in

earlier round, application Exh.6 was filed by the original plaintiff

to appoint the court commissioner, which was allowed on

26.02.2011. In pursuance of the ordered appointing the court

commissioner, a report was submitted by the court commissioner

on 28.02.2011 wherein it was found that construction of walls and

pillars in the suit land were found and construction activity was

going on. It is further submitted that application for interim

injunction was allowed by the court vide order dated 06.01.2013

in favour of the present plaintiff restraining defendants from

carrying out any further construction until final disposal of the

suit. That however, clear order of interim injunction was passed by

this Court on 06.01.2013, respondent No.3 continued to put up

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the construction on the subject land, and therefore, the plaintiff

was constrained to file the application Exh.41 with a view to

ascertain as to whether respondent No.3 is continuing and putting

up further construction on the subject land, however, the trial court

dismissed the application illegally. It is further submitted that first

application Exh.6 was filed by the plaintiff prior to the injunction

order granted in favour of the plaintiff. Application Exh.41 was

filed after the injunction order dated 06.01.2013. That activity of

construction was continued by the defendant No.3 even after the

injunction order passed by the trial court, and therefore, it was

necessary for the plaintiff to put the correct situation of the suit

land before the court below, however, trial court failed to

appreciate that by rejecting application Exh.41, plaintiff will not

be able to prove his case against the respondent No.3 continuing to

put up the construction even after the injunction order. That there

was no question of creating any evidence by the plaintiff against

the defendant. To ascertain the facts, it was necessary to direct the

court commissioner to draw the panchnama as prayed in the

application Exh.41, which would assist the court to elucidate the

matter in dispute. It is further submitted that observations made by

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the trial court while rejecting the application Exh.41 are not legal

and proper. Hence, it was requested by learned advocate for the

petitioner to quash and set aside the impugned order dated

22.04.2015 passed below Exh.41 by learned 7 th Additional Civil

Judge, Palanpur in Regular Civil Suit No.26 of 2011.

6. Per contra, learned advocate appearing for the respondent

No.3 has strongly objected the submissions made by learned

advocate for the petitioner and submitted that the previous

application below Exh.6 filed under Order 26 Rule 9 of the C.P.C.

for appointment of the court commissioner and drawing

panchnama of the suit land, was allowed vide order dated

21.01.2011 and panchnama was drawn on 26.02.2011. That no

further construction was undertaken by the respondent No.3. It is

further submitted that subsequent application Exh.41 was

vexatious on the part of the plaintiff after carrying out the

panchnama as per the order passed below Exh.6 on 26.02.2011

and order dated 31.03.2011 directing the parties to maintain status

quo in respect of the suit land. That it was the motive of the

plaintiff to create evidence against the respondent No.3. It is

further submitted that plaintiff can produce sufficient evidence

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before the court to show, if any, further construction was made by

the respondent No.3. That appointment of court commissioner

cannot be made to collect evidence as attempted by the plaintiff.

That impugned order is fair and proper as well as legal and no

interference can be warranted by this Court. In support of his

arguments, learned advocate for the respondent No.3 has relied

upon the judgments reported in (2010) JX (Guj) 778 and (2018) 2

Maharashtra Law Journal Page 255.

7. Having heard learned advocates for the respective parties as

well as documentary evidence produced on record, it is not in

dispute that in earlier round of litigation i.e. Regular Civil Suit

No.324 of 2003 filed by the plaintiff, judgment and decree was

passed on 13.08.2007 in favour of the plaintiff. The defendants in

the aforesaid suit were directed not to put up any construction on

the suit land and to demolish the wall constructed on the suit land.

It also appears that the suit land was purchased by the present

plaintiff by registered sale deed dated 02.01.2002. Thereafter Mr.

Kantilal Jangamal Vaghela and Ms. Valiben Kantilal Vaghela

from whom the suit land was purchased by the plaintiff, sold his

suit land to respondent No.1 by registered sale deed No.3645 on

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03.10.2009. Again respondent no.1 sold the suit land to

respondent No.2 by registered sale deed No.138 on 07.01.2010.

Respondent No.2 again sold the suit land to respondent No.3 by

registered sale deed No.731 on 05.02.2011. The plaintiff filed

Regular Civil Suit No.26 of 2011 before the learned Principal

Senior Civil Judge against the respondent Nos.1 and 2. In the said

suit, an application Exh.6 was filed by the plaintiff under Order 26

Rule 9 of C.P.C. for appointment of court commissioner and

drawing panchnama of the suit land on 22.02.2011, which was

allowed by the court on the very same day. Court commissioner

carried out the panchnama of the suit land on 26.02.2011 and

submitted his report on 28.02.2011 stating that there was a

construction of walls and pillars in the suit land and construction

activity was going on. The learned Civil Court, Palanpur also

directed the parties to maintain status quo of the suit land as

existed at the time of panchnama on 31.03.2011.

8. The plaintiff prayed in his application Exh.17 on 02.05.2011

for joining the respondent No.3 as party defendant No.3 in

Regular Civil Suit No.26 of 2011. The learned Trial Court was

pleased to allow the application Exh.17 vide order dated

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09.12.2012 and impleaded respondent No.3 as party defendant

No.3 in the suit. Plaintiff again filed fresh application Exh.41 on

18.12.2012 under Order 26 Rule 9 read with Order 39 Rule 7 and

Section 151 of the C.P.C. for drawing the panchnama through

court commissioner and prepare map as respondents have digged

the land and prepared to start construction and thereby likely to

change the status and location of the suit land.

9. It also requires to be considered that on 06.01.2013, after

hearing all the respondents, application Exh.5 for interim

injunction was granted by the trial court in favour of the plaintiff

restraining the respondents from carrying out any further

construction until the final disposal of the suit. The previous

application Exh.6 was filed by the plaintiff before granting interim

injunction dated 06.01.2013. While submitting the report by the

court commissioner on 28.02.2011 and preparing the panchnama,

it was clearly stated that there was construction of walls and

pillars in the suit land and construction activity is going on.

Present respondent No.3 was already on record while allowing

application Exh.17 preferred by the plaintiff vide order dated

09.12.2012. Thereafter, vide order dated 06.01.2013, interim

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injunction was granted by the trial court in favour of the plaintiff.

In a subsequent application Exh.41, it was clearly stated by the

plaintiff that in the suit land digging activity as well as preparation

of construction was made by the respondents and there is

possibility to change the status and location of the suit land,

narration of the suit land was also given, and therefore, requested

to prepare the panchnama as well as map through court

commissioner by appointing the court commissioner.

10. As per the application Exh.41 preferred by the plaintiff, it

was clearly stated that the respondents were preparing to start

construction by digging the suit land and were trying to change the

location as well as status of the suit property. It was necessary for

the court to put on record the real situation/status of the suit

property by appointing the court commissioner and prepare a

panchnama through him. It has come on record that the suit land

was purchased by the plaintiff by registered sale deed on

02.01.2002. Judgment and decree were passed in favour of the

plaintiff in Regular Civil Suit No.324 of 2003. Respondent No.1,

sold the suit property to respondent No.2, and thereafter,

respondent No.2 sold the suit property to respondent No.3 on

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05.02.2011. In a previous report submitted by the court

commissioner as per the order below Exh.6 dated 28.02.2011, it

was clearly stated that there was a construction of wall and pillars

in the suit land and construction activity is going on.

11. Considering the peculiar facts of the present case, there was

no reason to deny the appointment of the court commissioner and

prepare a panchnama of the suit land as prayed by the plaintiff in

his application Exh.41 because preparing a panchnama by

appointing court commissioner, no prejudice is likely to be caused

to the respondents. Correct situation of the suit property would

require to be placed before the court. There was no question of

creating any evidence by the plaintiff if the application Exh.41

would be allowed by the court. As per the order passed by the

court below on 31.03.2011 to maintain status quo by the parties

was required to be complied with by the parties in the suit. If any

attempt is made by the respondent No.3 of making any

construction or further construction as alleged in the application

Exh.41 must be placed on record through the court commissioner

by preparing a panchnama as requested.

12. In case of Kanabhai Vishrambhai Gadhvi versus Jenabhai

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Ali Bhukea reported in (2010) JX (Guj) 778, this court has

observed as under:

"6. Learned Counsel appearing for the respondent contended that Court Commissioner in present facts could not have been appointed as it would have amounted to helping the petitioner in creating evidence as it is not a dispute with regard to boundary and over lapping boundaries but the very title of the suit premises in question. Learned Counsel for the respondent relied on two decisions: (i) 1991 (2) GLH 580 in case of Kishore Kumar and Ors. v. Rajesh kumar Jayprakash Agrawal & ors; and (ii) AIR 1989 Orissa 118, in case of Basanta Kumar Swain v. Baidya Kumar Parida and Ors., contended that the Court Commissioner in these facts and circumstances could not have been appointed."

13. In case of Dhondiram Nivrutti Pawar (since deceased)

through L.Rs. Dhanaji Dhondiram Pawar and others versus

Laxman Khashaba Pawar and others reported in (2018)2

Maharashtra Law Journal Page 255, Hon'ble High Court of

Maharashtra has observed as under:

7. At this stage, Respondents have filed the present application for appointment of 'Court Commissioner' and, that too, only for the purpose of bringing on record the factual position that the plots are already made in the suit land and each plot is having separate water chamber. Needless to state that, the appointment of 'Court Commissioner' is just for collection of evidence, in order to enable the Respondents-Plaintiffs to prove

C/SCA/712/2016 JUDGMENT DATED: 15/11/2021

their prima-facie case for getting the relief of interim injunction. The law is fairly well settled that, the 'Court Commissioner' cannot be appointed for the purpose of collection of evidence and the impugned order of the Trial Court is exactly against this settled position of law.

8. Learned counsel for the Respondents has relied upon the Judgment of this Court in the case of Smt. Lalitprabha Krishnaji Ajgaokar (Since Deceased), through LRs. & Ors. Vs. Shri Yunus Khan (in Writ Petition No.354 of 2016, along with connected matters; dated 15th October 2016), to submit that, "Under Order 26 Rule 9 of CPC, a Commission to make local investigation can be issued, where the Court deems such a local investigation to be requisite or proper for the purpose of "elucidating any matter in dispute" or for ascertaining the market-value of any property, or, the amount of any mesne profits or damages or annual net profits to the properties."

9. However, in the instant case, there is nothing to be elucidated by appointment of 'Court Commissioner', as it is for the Respondents- Plaintiffs to prove the existence of the plots and also the water chambers and they can very well do so by producing necessary documentary evidence on record; like the 'N.A. Permission' obtained for making of the plots and they can also prove separate water chambers for such plots by producing 'Water Bills', or, the documents showing that such separate water chambers were obtained. They cannot seek appointment of 'Court Commissioner' for the purpose of proving their case.

14. Here in the instant case, it cannot be said that for collection

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of evidence, plaintiff has filed an application Exh.41. It can be

said that to clear the controversy between the parties in respect of

the suit land, application Exh.41 was submitted by the plaintiff as

previously decree was passed in favour of the plaintiff. Under the

circumstances, the judgments relied upon by the leaned advocate

appearing for the respondent No.3 will not be applied to the facts

of the present case.

15. Under the circumstances, present petition is hereby allowed.

The order dated 22.04.2015 passed below Exh.41 by learned 7 th

Additional Civil Judge, Palanpur in Regular Civil Suit No.26 of