Ajeet Kumar Buchasiya S/O ... vs Smt. Gyarsi Devi W/O Jitendra ...
2022 Latest Caselaw 539 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 14130/2019

Ajeet Kumar Buchasiya S/o Jagannath Buchasiya, Aged About 72
Years, R/o Ward No. 10, Bissau, Tehsil Malsisar, District
Jhunjhunu (Raj.)
                                                                  ----Petitioner
                                   Versus
Smt. Gyarsi Devi W/o Jitendra Kumar Sharma, R/o Ward No. 10,
Bisau, Tehsil Malsisar, District Jhunjhunu.
                                                                ----Respondent

For Petitioner(s) : Mr. Intjar Ali (through VC) For Respondent(s) : Mr. Arun Singh Shekhawat (through VC)

HON'BLE MR. JUSTICE SAMEER JAIN

Judgment / Order

Reserved on : 10/01/2022 Pronounced on : 21/01/2022

1. Present petition has been filed by the plaintiff-petitioner

under Article 227 of the Constitution of India against order dated

06.07.2019 passed by learned Civil Judge, Jhunjhunu in Case T.I.

No.47/2019 whereby the application filed by the plaintiff-petitioner

under Order 39 Rule 7 read with Section 151 CPC for appointment

of Commissioner has been dismissed.

2. Brief facts of the case are that on 21.06.2019 one civil suit

for mandatory and permanent injunction along with temporary

injunction application was filed by the plaintiff-petitioner against

the defendant-respondent before the learned trial court stating

therein that an ancestral plot/Nohra measuring 287.22 square

yards of ownership and possession of the plaintiff-petitioner as

(2 of 5) [CW-14130/2019]

well as his brother, situated in Ward No.10 of Bissau, was

registered in municipal record as Plot No.10/108. In the western

side of the said plot in question of the plaintiff-petitioner, there is a

way of 91/2 feet width passing between Plots No.10/107 and

10/110 upon which the defendant-respondent started construction

and it was prayed for removal of the construction made on the

way of the plaintiff-petitioner.

3. On 04.07.2019, reply to the T.I. application was filed by the

defendant-respondent and application under Order 39 Rule 7 read

with Section 151 CPC was also filed by the plaintiff-petitioner for

appointment of Commissioner for inspection of the suit property

as the defendant-respondent was trying to stop the way of the

plaintiff-petitioner by making construction on the way and the

petitioner wanted to bring on record the actual position of the site

and to preserve the suit property.

4. In reply to the said application under Order 39 Rule 7 read

with Section 151 CPC, the defendant-respondent denied the

submissions made by the plaintiff-petitioner in the application and

specifically stated that the defendant-respondent is in possession.

5. On 06.07.2019, the learned trial Court after hearing the

parties, dismissed the said application and hence, the present writ

petition has been filed in which Coordinate Bench of this Court

vide order dated 30.10.2019 granted interim protection to

maintain the status quo with regard to property in dispute.

6. The respective counsels for both the parties reiterated the

contentions raised before the learned trial Court and cited the

judgments at bar.

7. The preliminary contention of the petitioners' counsel was

that the learned trial Court has wrongly arrived at a finding that

(3 of 5) [CW-14130/2019]

no document with regard to the title and possession was produced

by the petitioner whereas the fact was that the record of Municipal

Board, Bissau clearly established this fact that the plot in question

Bearing No.10/108 is in ownership, possession and occupation of

the plaintiff. Therefore, the finding was perverse. The second

submission of petitioners' counsel was that the petitioner has not

filed independent application under Order 39 Rule 7 CPC for

creation of evidence but only to bring on record the latest position

of the suit property for justifying his T.I. Application. It is settled

position of law as per petitioners' counsel that once the fact that

the plot Exhibited in map annexed to the plaint was existing

between Plots No.10/110 and 10/107 was not denied in reply to

the T.I. Application, then in that case, to present alteration in the

nature of suit property, appointment of commissioner was

necessary.

8. Per contra, learned counsel for the respondent submitted

that the plot in question marked as A,B,C,D in the map annexed

with the plaint does not belong to the plaintiff while the defendant

is in possession of the same for last 35 years, the plaintiff has not

produced any title document with regard to plot marked as

A,B,C,D and entries in municipal record are not a conclusive proof

of ownership and therefore, the appointment of commissioner on

the grounds that the petitioner has failed to justify that the

property in question is ancestral and the by way of filing the

application, the petitioner is trying to use the learned trial court as

a tool for creation of evidence by seeking appointment of

commissioner and the learned trial Court was right in rejecting the

application.

(4 of 5) [CW-14130/2019]

9. In support of his submissions, learned counsel for the

respondent has also relied upon the judgments of this Court in

Capricorn Life Style Pvt. Ltd. Vs. Sunil Kumar & Anr.

reported in 2015(1) DNJ (Raj.) 184, decided on 05.12.2014 as

well as in Lalita Solanki Vs. Shah Mitesh (S.B. Civil Writ

Petition No.17775/2021), decided on 20.12.2021 and Smt.

Bibi Begam Vs. Udai Lal (S.B. Civil Writ Petition

No.15902/2021), decided on 14.12.2021.

10. On perusal of above contentions submitted by respective

counsels and scanning record of the writ petition, this Court is of

the view that supervisory jurisdiction under Article 227 is a limited

jurisdiction which is to be invoked only when there is a manifest

error apparent on the face of the record or violation of principles

of natural justice in passing the order impugned.

11. On perusal of the order impugned, this Court feels that

justified reasons are specified while passing the impugned order

and for rejecting the claim of appointment of commissioner under

Order 39 Rule 7 CPC. The learned trial Court has categorically held

that the Court cannot be used as a tool for collecting evidences,

especially when, the petitioner has failed to bring on record any

title document as to how the property in question was ancestral.

The petitioner wants that the deficiency of their suit can be

fulfilled by appointment of commissioner and the disputed

questions of fact can be re-opened.

12. On perusal of the judgments cited at bar and following the

guided principles given by Hon'ble Supreme Court in Shalini

Shyam Shetty & Ors. Vs. Rajendra Shankar Patil reported in

2010(8) SCC 329, which is relied upon in the case of Lalita

(5 of 5) [CW-14130/2019]

Solanki (supra), this Court is of the view that no interference in

the present writ petition is called for.

13. As a result, the writ petition is dismissed. Interim order

stands vacated.

14. All pending applications also stand disposed of.

(SAMEER JAIN),J

Raghu/

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