Gujarat High Court
L H Of Decd. Jafarbhai Ibrahimbhai ... vs Gani Rahim Chel on 29 January, 2024
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C/SCA/1363/2024 ORDER DATED: 29/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1363 of 2024
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L H OF DECD. JAFARBHAI IBRAHIMBHAI NAREJA
Versus
GANI RAHIM CHEL
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Appearance:
DEV D PATEL(8264) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4,1.5,1.5.1,2
for the Respondent(s) No. 1,2,3,4,5,6
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 29/01/2024
ORAL ORDER
1. The present petition is filed challenging the
impugned order dated 19.3.2021 passed by the learned 2
nd
Additional Senior Civil Judge & JMFC, Veraval below Exh.42
in Regular Civil Suit No.139 of 2017 by which the
application for appointment of DILR is rejected.
2. The brief facts leading to this petition are such
that the petitioners have preferred Regular Civil Suit No.139
of 2017 against the respondents for declaration and
permanent injunction qua land situated at city survey no.120,
wherein the court commissioner carried out the panch-rojkam
on 12.11.2017 of the said land (C.S.No.120 and 122 Prabhas
Patan) and submitted his report along with the map of the
site; that the respondents filed written statement at exh.16
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and has stated that they are putting up the construction on
the city survey no.119 of Prabhas Patan and not on city
survey nos.120 and 122; that the petitioners preferred an
application at Exh.23 for appointment of maintenance
surveyor to admeasure city survey nos.120 and 122 along
with constructions situated thereto; that the said application
was rejected on the ground that earlier a court commissioner
was appointed; that Special Civil Application No.10149 of
2018 challenging the said order came to be dismissed vide
order dated 7.8.2018; that the petitioners preferred application
at Exh.42 for joint measurement of city survey nos.119, 120
and 122 along with the situation thereto; that the said
application Exh.42 came to be dismissed vide impugned order
dated 19.3.2021; against which this petition is filed.
3. Heard learned advocate Mr.Patel for the
petitioners.
4. Learned advocate Mr.Patel submitted that the
petitioners have filed the application Exh.42 as there is
dispute about the boundaries of the properties and the report
of the DILR will certainly help the trial court to adjudicate
the dispute between the parties in appropriate manner. He
has further submitted that the learned trial court has not
considered the relevant aspects of the matter and misled
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itself by relying on the earlier applications filed for
appointment of court commissioner and the report of the
court commissioner being available on the record. He has
further submitted that actually the appointment of DILR will
clarify that whether there is encroachment made in the land
in question and if that report is available on the record, then
the concerned court may also verify the report and thereafter
decide the issue accordingly, which will certainly be in the
interest of justice. He, therefore, submitted that the learned
trial court has committed gross error in rejecting the said
application. He has further submitted that the learned trial
court has not considered the provisions of Order 26 of CPC.
He, therefore, prays to allow this petition.
5. In support of his submissions, learned advocate for
the petitioner has relied on the decisions in the case of
Haryana Waqf Boad V/s Shanti Sarup And Others, reported
in (2008) 8 SCC 671 and Kashinath s/o Ramkrishna Chpade
V/s Purshottam Tulshiram Tekade And ors. Reported in
(2005)6 BCR 267.
6. I have considered the submissions made at the bar
by learned advocate for the petitioners and also perused the
material available on the record along with the petition and
more particularly, the findings of the learned trial court
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while rejecting the application filed for appointment of DILR
at Exh.42 whereby the petitioners have prayed that the court
DILR may be appointed to carry out the inventory of the
land situated at block no.B city survey no.119, block no.B
city survey no.120 and block no.B of city survey no.122 of
Prabhas-Patan. It also transpires that the learned trial court
has considered the material available on the record and the
proceeding of the suit. The learned trial court has found that
earlier the plaintiffs have filed application under the
provisions of Order 26 Rule 9 of CPC for appointment of
court commissioner which was allowed and sketch of the
court commissioner along with the report is produced at
mark 7/1. Thereafter, once again the application at Exh.23 is
filed to measure the land through the maintenance surveyor
which was rejected by order dated 10.4.2018 which was
challenged before this court by way of Special Civil
Application No.10149 of 2018 which was dismissed by this
Court and therefore the order passed below Exh.23 is
confirmed by this Court. Thereafter, once again, the
application at Exh.42 is filed before the learned trial court
for appointment of DILR.
7. The learned trial court has considered all these
aspects in appropriate manner and once the report of the
court commissioner is already on record, an earlier round of
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litigation was carried up to this Court, the issue regarding
the appointment of court commissioner is broadly decided by
the learned trial court as well as the High Court, hence,
filing of the application Exh.42 again by the present
petitioners is an attempt to delay the proceeding and also
with a view to collect the evidence in support of his case,
though such application will not help the court below in any
manner to adjudicate the controversy between the parties.
8. Order 26 Rule 9 of CPC reads as under:
"9. Commissions to make local investigations.--In any suit in
which the Court deems a local investigation to be requisite
or proper for the purpose of elucidating any matter in
dispute, or of ascertaining the market-value of any property,
or the amount of any mesne profits or damages or annual
net profits, the Court may issue a commission to such
person as it thinks fit directing him to make such
investigation and to report thereon to the Court:
Provided that, where the State Government has made rules
as to the persons to whom such commission shall be issued,
the Court shall be bound by such rules.
9. Considering the settled position of law and that
the court cannot direct the court commissioner again and
again with a view to create evidence in any favour of any of
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the parties, this Court is of the opinion that the learned
trial court has not committed any error in passing the
impugned order.
10. There cannot be any disagreement with the ratio
laid down in the decisions cited by learned advocate for the
petitioner but the facts of the present are different from the
facts of the said cases. In the present case, earlier court
commissioner has already taken the measurement and
therefore such judgments will not be helpful in the case of
the present petitioners.
11. In view of the above discussion, this petition is
dismissed in limine.
(SANDEEP N. BHATT,J)
SRILATHA
