Rajasthan High Court - Jodhpur
Rakamchand vs Rukmani on 3 February, 2021
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 1650/2020
1. Rakamchand S/o Shri Vitthla, Aged About 69 Years, By
Caste Bhil Resident Of Dhalkiya, Banswara Tehsil And
District Banswara.
2. Nanji S/o Shri Vitthla, Aged About 58 Years, By Caste Bhil
Resident Of Dhalkiya, Banswara Tehsil And District
Banswara.
3. Ramesh S/o Shri Vitthla, Aged About 52 Years, By Caste
Bhil, Resident Of Shyampura Tehsil And District Banswara.
4. Tulshi (Basanti) W/o Ramesh Chandra, Aged About 48
Years, By Caste Bhil, Resident Of Shyampura Tehsil And
District Banswara.
5. Anu D/o Ramesh Chandra, Aged About 31 Years, By Caste
Bhil, Resident Of Shyampura Tehsil And District Banswara.
6. Sonu D/o Ramesh Chandra, Aged About 27 Years, By
Caste Bhil, Resident Of Shyampura Tehsil And District
Banswara.
----Petitioners
Versus
Rukmani W/o Shri Ganpat Lal Labana, Resident Of Garhi Tehsil
Garhi District Banswara At Present Shyampura Tehsil And District
Banswara.
----Respondent
For Petitioner(s) : Mr. Mahendra Trivedi
For Respondent(s) : Mr. Narendra Thanvi
JUSTICE DINESH MEHTA
Order
03/02/2021
1. By way of the present writ petition, the petitioners have
challenged the order dated 22.11.2019, passed by the learned
Additional Civil Judge, Banswara, whereby petitioners' application
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(2 of 3) [CW-1650/2020]
dated 15.11.2018, filed under Order XXVI Rule 9 of the Code of
Civil Procedure has been rejected.
2. Mr. Trivedi, learned counsel for the petitioner, challenging the
order impugned, submitted that the Court below has erred in
rejecting petitioners' application, seeking appointment of
Commissioner, while simply observing that the petitioners are
trying to collect evidence in their favour.
3. Learned counsel for the petitioner invited Court's attention
towards the subject application and argued that according to the
plaintiff, the defendents are raising construction on their
(plaintiff's) land situated in Survey No.10/2, whereas it is
contention of the defendants (present petitioners) that they are
raising construction in the land situated in Survey No.505/236/7,
which is in possession of defendant.
4. In support of his submissions, learned counsel for the
petitioner relied upon the judgment of this Court in the case of
Ravindera Nath & Ors. Vs. Piyush Kumar Joshi reported in
2019 (3) DNJ (Raj.) 1183.
5. Mr. Thanvi, learned counsel for the respondents, argued that
petitioners have filed the subject application simply with a view to
collect evidence, rather create evidence in their favour. He added
that a party to the suit has to substantiate its stand by leading
evidence; oral or documentary. He cannot misuse the process of
law by filing an application seeking appointment of Commissioner.
6. Heard.
7. In considered opinion of this Court, the fact as to whether
the construction which is being raised by the respondent- plaintiff
is situated in Survey No.10/2 of village Shyampura or in Survey
No.505/236/7 cannot be determined on the basis of documents.
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(3 of 3) [CW-1650/2020]
8. Since the very location of the plot is in dispute, it is only the
Revenue Authority, who can ascertain and apprise the Court about
correct location of the construction.
9. In the facts of the present case, it is wrong to apprehend
that the petitioners would collect evidence in their favour.
10. The report of the Patwari/Tehsildar will tell the exact location
of the plot on which the defendant is raising construction, which
may be in favour of the plaintiff as well.
11. Hence, the writ petition is allowed. Impugned order dated
22.11.2019 is quashed and petitioners' application dated
15.11.2018 is allowed.
12. The trial Court is directed to appoint concerned Patwari as
Commissioner to ascertain the exact location of the offending
construction.
13. The requisite 'Tehrir' in terms of the present order be issued
by the trial Court, within a period of seven days of placing certified
copy of the order instant.
14. Stay application is also disposed of.
(DINESH MEHTA),J.
163-A.Arora/-
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