Gujarat High Court
Ghanshyambhai Maganbhai Talavia vs Shri Kishorbhai Bhanubhai Kothiya on 19 June, 2024
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C/SCA/4849/2019 JUDGMENT DATED: 19/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4849 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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GHANSHYAMBHAI MAGANBHAI TALAVIA
Versus
SHRI KISHORBHAI BHANUBHAI KOTHIYA & ANR.
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Appearance:
JAY R TALAVIA(9311) for the Petitioner(s) No. 1
MR MRUNAL DHOLARIA FOR MR. BHAUMIK DHOLARIYA(7009) for the
Petitioner(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 19/06/2024
ORAL JUDGMENT
1. The present petition is filed seeking following reliefs in para
9 :-
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C/SCA/4849/2019 JUDGMENT DATED: 19/06/2024
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"(A) Your Lordships may be pleased to admit and allow this
Special Civil Application;
(B) Your Lordships may further be pleased to issue a writ
of certiorari or any other appropriate writ, Order or
direction in the nature of certiorari and be pleased to
quash and set aside the Order dated 28.02.2019 passed by
the learned Principal Senior Civil Judge, Bardoli below
application at Exhibit 36 in Special Civil Suit No. 31 of
2016 (ANNEXURE "A");
(C) Pending admission, hearing and final disposal of this
petition, Your Lordships may be pleased to stay the further
execution, operation and implementation of the Order
dated 28.02.2019 passed by the learned Principal Senior
Civil Judge, Bardoli below application at Exhibit 36 in
Special Civil Suit No. 31 of 2016 (ANNEXURE "A");
(D) Any other and further relief as thought fit may kindly
be granted."
2. Facts of the case are as under :-
2.1. Respondent no.1 herein preferred Special Civil Suit No.31
of 2016 in the Court of Principal Civil Judge, Bardoli under
section 34 and 36 of the Specific Relief Act for declaration,
permanent injunction and in the alternative for possession. In
the said suit, the respondent no.1 has also prayed for
declaration and cancellation of registered sale deed dated
05.03.2012 in favour of the petitioner and also prayed for
permanent injunction in the alternative for possession. It is also
submitted that on 13.02.2017 the respondent no.1 filed
application at Exh.36 for appointment of Court Commissioner
alleging that respondent no.1 has produced photographs of the
land which is not of the suit land. The petitioner filed reply
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C/SCA/4849/2019 JUDGMENT DATED: 19/06/2024
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opposing the said application. The learned Trial Court vide order
dated 28.02.2019 partly allowed the application Exh.36 and
granted Court Commission of the suit property for carrying out
panchnama and preparing map of the suit property. Hence,
present petition.
3. Heard learned advocate for the petitioner who is defendant
no.2 in the suit. Plaintiff is served, but he has chosen not to
remain present before this Court.
4. Challenge in this petition is order passed below Exh.36,
whereby, learned Trial Court allowed application of the plaintiff
filed under Order 26 Rule 10 of CPC to appoint Court
Commissioner. If we take contention in application Exh.36, it
appears that plaintiff intended to bring on record that he is in
possession of disputed property and he is taking grass from the
disputed land. In background of these facts, if we see relief
claimed in the plaint, the plaintiff prayed to declare that he is
owner and occupier of disputed land as registered sale deed
dated 29.10.2010 was executed in his favour with consequential
relief that sale deed executed on 05.03.2012 in favour of the
defendant is not binding to the plaintiff and to declare that the
plaintiff is in possession of disputed property. Thus what
appears that by moving application under Order 26 Rule 10 of
CPC, the plaintiff indents to bring on record evidence with the
help of the Court. The plaintiff who is seeking relief to protect his
possession is required to establish his possession by way of
independent evidence. The Court cannot help the plaintiff in
procuring any evidence.
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C/SCA/4849/2019 JUDGMENT DATED: 19/06/2024
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5. Learned Trial Court has totally misread the provision of
Order 26 Rule 9 and 10 of CPC. Order 26 Rule 9 of CPC permits
the Court to take 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.
6. At the cost of repetition, it is to be noted that the plaintiff
intends to establish that he is in possession of the disputed
property and he is taking grass from disputed property. It is not
issue to be requisite for the purpose of elucidating any dispute.
7. Averments made in the application appears that plaintiff
was intending to take help of the Court for taking evidence,
which is impermissible.
8. For the foregoing reasons, the petition succeeds. Impugned
order dated 28.02.2019 passed by the learned Trial Court below
application Exh.36 in Special Civil Suit No.31 of 2016 is
quashed and set aside.
(J. C. DOSHI,J)
SATISH
