Rajasthan High Court - Jodhpur

Suganaram vs Ramratan Bhakhar on 8 December, 2021

Bench: Pushpendra Singh Bhati

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 11526/2019

1. Suganaram S/o Shri Ram Pratap Ji Jat, Aged About 52 Years, R/o Village Gajsukhdesar, Tehsil Nokha, District Bikaner.

2. Bhanwari Devi W/o Shri Suganaram Jat, Aged About 42 Years, R/o Village Gajsukhdesar, Tehsil Nokha, District Bikaner.

----Petitioners Versus

1. Ramratan Bhakhar S/o Shri Purkharam Ji Bhakhar, B/c Jat, R/o Village Gajsukhdesar, Tehsil Nokha, District Bikaner.

2. Nandram S/o Shri Ramratan Bhakhar, B/c Jat, R/o Village Gajsukhdesar, Tehsil Nokha, District Bikaner.

----Respondents

For Petitioner(s) : Mr. RK Thanvi, Sr. Advocate assisted by Mr. Narendra Thanvi For Respondent(s) : Mr. GR Punia, Sr. Advocate assisted by Mr. Rajesh Punia

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

08/12/2021

The petitioner has preferred this writ petition claiming for the

following relief :-

"Quash the impugned order dated 06.07.2019 (Annex.5) passed by the learned Senior Civil Judge, Nokha, Bikaner."

Counsel for the petitioner submits that petitioners filed a

civil suit against the respondents for permanent and mandatory

injunction seeking restraint against them from trespassing over

the public chowk and raising construction thereon.

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The respondents filed a reply.

The petitioner-plaintiff filed an application under Order 39

Rule 7 CPC for appointment of Commissioner, which was allowed

and learned trial court vide order dated 09.03.2018 appointing

Mr. Manoharlal Vishnoi, Advocate as Commissioner.

The Court Commissioner after visiting the site submitted the

Mauka report alongwith spot map, 17 photographs of site and a

CD before the learned trial court.

The learned trial court on one of the next dates i.e.

06.07.2019 directed the Gram Sewak, Gajsukhdesar to measure

the land of the 'Patta' in-question as per Panchayat record and

also to measure road in between the 'Pattas' in-question, which

are 'Patta' no.7 & 8 and 10, 11 & 9 and submit a report before the

trial court.

Counsel for the petitioner submits that in case the learned

trial court was required to appoint fresh commissioner, it could

have done so but only after recording reasons for discarding the

earlier report of Commissioner appointed by the court, which has

not been done by the learned trial court. Counsel for the petitioner

referred to the judgment of Hon'ble Allahabad High Court passed

in the matter of Ram Lakhan & Anr. Vs. District Judge & Ors.

(Civil Misc. Writ Petition No.20665 of 1990, decided on

30.10.1992). The judgment reads as follows:-

"1. The facts in brief are that the Petitioners filed suit against Respondent nos. 2 to 4 for cancellation of sale deed dated 16-8-1992 and for injunction restraining them from interfering in their possession over plot nos. 196, 197 and 202 and for demolition of the construction raised on these plots. The Defendants contested the suit inter alia on the ground that the disputed constructions have been

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raised over plot no. 201 and not over plot nos. 196, 197 and 202. The Petitioners applied for issuing of survey commission. The Court appointed Amin to make local inspection and to submit a report. The Amin submitted a report along with the map. The Petitioners filed objection against the report of the Amin. The Defendants did not file any objection against the said report. The trial Court rejected the objection of the Petitioners mainly on the ground that the objection of the Petitioners was not accompanied by any affidavit. The report was confirmed subject to evidence.

2. Subsequently, the Petitioner applied for fresh survey commission on the ground that the plots in dispute be measured on the basis of the settlement maps. The Court invited objection on the said application. The Defendants filed objection stating that the Amin had already submitted a report and map and the same having been confirmed by the Court, it had no jurisdiction to entertain any other application.

3. The Court after hearing the counsel for both the parties again appointed Amin to make local inspection and survey the plots on the basis of settlement map and thereafter submit report. The Defendants aggrieved against the said order, filed revision before the learned District Judge, who allowed the revision and set aside the order passed by the trial Court. The Court was of the opinion that the trial Court had no power to appoint another survey commission as earlier the Amin as appointed, who had already submitted a report and such report was confirmed subject to evidence in the suit. This order has been challenged in this petition.

4. The power to appoint a Commissioner is contained in Order 26 Rule 9 of the Civil Procedure Code. Sub Rule 3 of Rule 10 of the Code empowers the Court to direct further enquiry, in case the Court is dissatisfied with the proceedings of the Commissioner. It reads as under:-

"Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit."

The dissatisfaction of the Court may be with regard to the procedure adopted by the Commissioner or where the Court finds that the report of the Commissioner is insufficient for determining the controversy involved in the suit or where further details are required for ascertaining certain facts, the Court has power to appoint another Commissioner. This depends upon various factors.

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5. In P.B. Kamayan v. Achuta Menon AIR 1932 Mad. 482, the Court deprecated the practice of subordinate Courts in issuing several com- missions in succession and arriving at conclusion by process of selection from the reports of each Commissioner. The Court only cautioned that purpose -of appointing successive Commission should not be to obtain various reports aid thereafter to select on which report it should rely upon.

In Mangal Misir v. Ram Lagan Misir, this Court took the view that unless the Court applies its mind-with regard to the report of first Commissioner it should not appoint another Commissioner. In the present case, however, the Court had applied its mind regarding the first commission and considered the fact that survey of the disputed plots should be done on the basis of the settlement map and for that purpose appointed Amin.

In Nazir Singh V. Lakkhu Ahir : AIR 1945 All. 422, the Court took the view that there was no error of law in appointing more than one Commissioner. The Court observed --

"If the report of one commissioner was unsatisfactory in certain respects, it was permissible for the Court to remit the case to the same Commissioner or to appoint another Commissioner."

The learned Counsel for the Respondent urged that unless the first report of the Commissioner is set aside, the Court has no power to appoint another Commissioner and obtain other report. This aspect was considered by the Patna High Court in Shiv Charan Sahu y. Sharda Prasad 1937 Pat. 670. It was held that when a Court issues commission but is dissatisfied with the report of the Commissioner, it is entitled to issue another commission, and ask for its report, but the report of the first Commissioner cannot he wiped our of the record.

This view has been followed in Hydra v. Govidankutty: AIR 1982 Kerala.49. The language of Rule 10 (3) does not provide for setting aside the report and only thereafter issuing a new or second commission. The Court observed that it is not repository of the Court's power to issue a second commission. That power in matters other than partition has therefore, to be traced to the well known principle that power to issue a commission is not exhausted with the first exercise thereof and setting aside the first report can not be a condition precedent for exercise of the, power to call for another. Menon, J. observed :

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"It is in the power of the trial Court to send out a second or even a third commission, and when all the materials are before the Court it may at the time of delivering judgment attach very little OF no weight to the first Commissioner's report, but this is very far from saying that this amounts to requiring the first report to be wiped out of the record and not considered as evidence."

The observation of the Court in Kunhi Kutti Ali v. Mohammad Haji AIR 1931 Mad. 73 and P. B. Karnavau v. Achuta Menon AIR 1932 Mad. 482, were considered and distinguished.

6. It was next urged by the learned Counsel for the Respondent that- the report submitted by the Amin has been confirmed subject to evidence and the Court had fixed the date for evidence in the case and the trial Court acted illegally in appointing another Amin to survey the plots in question. The fact that the report of a Commissioner is confirmed subject to evidence does not deprive the power to the Court to appoint another Commissioner. Order 26 Rule 9 of Civil Procedure Code provides for the appointment of Commissioner for local investigation, Rule 11 for examination of accounts and Rule 13 for making partition. Sub-rule (3) of Rule 14 provides for confirmation of report or for setting aside the report of a Com-missioner but there is no such provision when the Court appoints Commissioner for making local investigations. Sub-rule (2) of Rule 10 of the Civil Procedure Code treats the report of a Commissioner only as a piece of evidence. The parties have a right to cross examine the Commissioner in open Court touching any of the matters referred to or mentioned in his report. The parties may also adduce evidence either supporting the report of the Commissioner or show that the report of the Commissioner is erroneous. In fact, the Court can not take final view regarding the report of a Commissioner till the evidence is finally concluded and Court applies its mind on the report of the Com- missioner.

7. In a case where the main dispute is regarding the location of the plots or nature of the constructions raised on such plots, the oral evidence of the parties shall, not be of much f to determine the exact location of disputed plots and the constructions raised thereon. If the Court is of the opinion that the report of the Commissioner is insufficient or it is desirable to obtain further details, it is always open to the Court to appoint another Commissioner. The Court can consider the report submitted in the case while deciding the suit. The

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position will be different in suits for partition where Commissioner is appointed to make partition. The report and map submitted by the Commissioner will form part of the partition decree and unless that is set aside, the Court has no power to appoint another Commissioner but in a case where local investigation is necessary to ascertain certain facts, the Court has power to appoint another Commissioner to get additional information so as to determine the controversy involved in the suit more effectively.

8. In the present case, the trial Court after considering the circumstances was of the opinion that Amin may again be directed to submit a report after surveying the land in dispute on the basis of settlement maps and other maps. The main dispute in the suit was regarding the location of plots on which the constructions were made. It was for the trial Court to exercise the jurisdiction in the matter. The District Judge illegally set aside the order of the trial Court in revisional jurisdiction and interfered with the exercise of discretion of the trial Court in directing the Amin to submit another report.

9. In the result, the writ petition is allowed and the order passed by the District Judge, Basti dated 14-5-1990 is quashed. The parties shall, however, bear their own costs."

Counsel for the respondent submits that it was open for the

learned trial court to get further assistance from the Panchayat

record of Panchayat Officer to get the official measurement and

description as per the official record.

After hearing counsel for the parties, this Court is of the

opinion that in case the learned trial court was to discard the

report of earlier Commissioner and to appoint a fresh

Commissioner, then of course trial court ought to have given

reasons for requirement of discarding a particular Commissioner's

report but in the present case no application for discarding or

disagreeing with the earlier Commissioner's report was preferred

by either of the parties and it is only for further clarity for the