Gujarat High Court
Raychandji Kanji Koli vs Dhudaji Kanji Koli on 7 September, 2021
Bench: B.N. Karia
C/SCA/7056/2019 ORDER DATED: 07/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7056 of 2019
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RAYCHANDJI KANJI KOLI
Versus
DHUDAJI KANJI KOLI
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Appearance:
HCLS COMMITTEE(4998) for the Petitioner(s) No. 1
MR PRAKASH G PANDYA(3041) for the Petitioner(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 07/09/2021
ORAL ORDER
1. The present petitioner, who is the original
plaintiff, in the Regular Civil Suit No. 4 of
2014, pending before the Court of learned
Principal Civil Judge, Tharad, District
Banaskantha, has requested this Court to quash
and set aside the order dated 23.08.2018 passed
below Exh. 20 in Regular Civil Suit No. 4 of
2014, whereby the application preferred by the
petitioner for making panchnama and measurement
of disputed land bearing Survey No. 64 by the
D.I.L.R., Banaskantha was rejected on
23.08.2018.
2. It is submitted that the Regular Civil Suit
No. 4 of 2014 was filed by the present
petitioner for getting permanent injunction and
in alternative to cancel the sale deed with
consequential reliefs. During the pendency of
C/SCA/7056/2019 ORDER DATED: 07/09/2021
the suit, the application below Exh. 20 was
submitted by the plaintiff for doing panchnama
and the measurement of the disputed land by
D.I.L.R. Banaskantha. The learned Judge, Tharad
was pleased to dismiss the application vide
order dated 23.08.2018. Hence, present petition
is preferred by the petitioner - original
plaintiff under Article 14, 21 and 227 of the
Constitution of India.
3. Heard learned advocate Mr. Prakash G. Pandya
for the petitioner. However, as per the cause-
list, the notice was served to the respondents,
nobody appeared to contest the petition.
4. It was submitted by the learned advocate
appearing for the petitioner that the impugned
order passed below Exh. 20 dated 23.08.2018 is
contrary to the law and facts and circumstances
of the case as well as without application of
mind. It is further submitted that the trial
court has not considered the provisions of Order
26 Rule 9 of the Civil Procedure Code. The
trial Court ought to have allowed the
application Exh. 20. That measurement and the
panchnama were required to be drawn through
D.I.L.R., however, the trial court has
completely ignored the provisions under Order 26
Rule 9 of the Code of Civil Procedure by not
considering the prayers made in the application.
Hence, it was requested by learned advocate
C/SCA/7056/2019 ORDER DATED: 07/09/2021
appearing for the petitioner to quash and set
aside the order dated 23.08.2018 passed below
Exh. 20 in Regular Civil Suit No. 4 of 2014
pending before the Principal Civil Judge,
Tharad. It is submitted that the abovesaid suit
is pending for pronouncement of the judgment as
on today.
5. Having heard learned advocate for the
petitioner, the contents of the suit filed by
the petitioner i.e. Regular Civil Suit No. 4 of
2014, it is averred that deducting the land, the
land of 7 acre and 14 gunthas was required to be
spared on the revenue records, but however, the
land was not spared admeasuring 7 acre and 14
gunthas. It appears that evasive averments were
made by the plaintiff that he was ignorant with
law, the defendants have encroached the land of
the plaintiff as the total land was 17 acre and
29 gunthas of Survey No. 64. It was further
averred in the plaint that in the year 2003,
some of the portion of the land, was sold to
defendant No. 1 @ Rs. 43,000/-, and therefore,
the remaining land could be 7 acre and 14
gunthas on his part. With the collusion of the
Government Officials, encroachment was made by
the defendants and therefore, cause of action
was arisen. This suit was filed by the
plaintiff on 11.02.2014. The application Exh.
20 for preparing the panchnama through D.I.L.R.
of the Banaskantha District was made on
C/SCA/7056/2019 ORDER DATED: 07/09/2021
29.06.2017. The order below the application
Exh. 20 was passed by the Court below on
23.08.2018 rejecting the prayers made by the
petitioner. As on today, as submitted by the
learned advocate for the petitioner, Regular
Civil Suit No. 4 of 2014, is pending for
pronouncement of the judgment after recording
evidence and hearing of the parties.
6. It is settled principal of law that the
plaintiff, who has approached the court, has to
prove his case either from the contents of the
plaint or by adducing any documentary evidence
as well as oral evidence in his favour. When
the suit was filed in the year 2014, no such a
prayer was made by the plaintiff for preparing a
panchnama of the land in dispute. At the stage
of recording the evidence, in the year 2017,
this application Exh. 20 was submitted by the
plaintiff. As observed by the learned trial
court that appointment of the Commissioner
cannot be permitted to the party to collect the
evidence by making appointment of the Court
Commissioner. The attempt made by the present
petitioner in 2017 after filing of the suit at a
very belated stage, cannot be permitted to
collect the fresh evidence in support of his
case. If the plaintiff was unable to prove his
case, consequence would be faced by him. After
all, the learned trial Court is the best
authority to decide the prayer made by the
C/SCA/7056/2019 ORDER DATED: 07/09/2021
plaintiff in his suit after considering the
evidence adduced and produced before the Court.
At this juncture, when the suit itself is
pending for pronouncement of judgment as on
today, it would not be in the interest of
justice to accept the prayer of the present
petitioner to quash and set aside the impugned
order. Otherwise, there is delay on the part of
the plaintiff in preferring the application Exh.
20 for the purpose of appointment of the court
Commissioner for measurement of the land through
D.I.L.R. Palanpur. Such a permission is rightly
rejected by the trial court vide the impugned
order dated 23.08.2018.
7. This Court has not found any substance in
the petition. Hence, this petition is dismissed.
The learned Judge of trial Court would be free
to decide the suit independently without being
influenced by any observation made by this Court
in this order. Notice is discharged.
(B.N. KARIA, J)
AMAR SINGH
