Smt Mangli Devi And Anr vs Panch Maliyan Samaj
2022 Latest Caselaw 3860 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

             S.B. Civil Writ Petition No.9938/2018

1. Smt. Mangli Devi W/o Sitaram Saini, aged about 42 years,
2. Sitaram Saini S/o Late Bajrang Lal, aged about 49 years,
R/o Neem Chowki, Opp. Mandir of Gopalji Maharaj, Sheopur
Road, Sawaimadhopur.
                                   ----Petitioner-Defendants No. 2 & 3
                                  Versus
Panch Maliyan Samaj, Neema Chowki, Sawaimadhopur City-
1. Rajesh Kumar S/o Hari Ram R/o Neem Chowki, Khandar Road,
Sawaimadhopur City, Tehsil & District Sawaimadhopur, Presently
President Panch, maliyan Samaj, neem chowki, Sawaimadhopur.
2. Radhey Shyam mali S/o Late Raghunath mali, R/o old Grain
Mandi Road, Near krya Vikrya Sahakari Samiti, Sawai Madhopur,
panch,     panch     maliyan  Samaj,   Neema    Chowki,    City
Sawaimadhopur.
3. Rajendra @ Raju S/o Late Kailash Mali, R/o neem Chowki,
Sawaimadhopur City.
4.    Ramjilal    S/o  Anandital mali,   R/o   neem    Chowki,
Sawaimadhopur City.
                                        --Respondents/Plaintiffs

5. Laddu Lal S/o late Bhairulal Mali, R/o neem Chowki, Near mandir of Gopalji maharaj, Sheopur Road, Sawaimadhopur (Deceased) Through L/rs:-

5/1. Prem Devi W/o Laddu, 5/2. Ganpat Lal S/o Laddu, 5/3. Murari Lal S/o Laddu, All R/o neem chowki, City Sawaimadhopur. 5/4. Guddi D/o Laddu W/o Sitaram, R/o Peepalwada, Tehsil & District Sawaimadhopur.

5/5. Janki D/o Laddu W/o Hukam chand, R/o Bahrawanda khurd, Tehsil khandar District Sawaimadhopur. 5/6. Pooni D/o Laddu, W/o Suresh, R/o Mandi Road, Aalanpur, Tehsil & District Sawaimadhopur.

6. Municipal Council, Sawaimadhopur, through Commissioner.

7. Municipal Council, Sawaimadhopur, through Chair-person.

----Performa-Respondents/Defendants

Connected With

S.B. Civil Writ Petition No.7437/2022

1. Smt Mangli Devi Wife Of Sitaram Saini, Aged About 41 Years, R/o Neem Chauki, Opposite Mandir Gopalji Maharaj, Sheopur Road, Sawaimdhopur .

2. Sitaram Saini Son Of Late Bajrang Lal, Aged About 48

(2 of 9) [CW-9938/2018]

Years, R/o Neem Chawki, Opposite Mandir Of Gopalji Maharaj, Sheopur Road, Sawaimdhopur .

----Petitioners Versus Panch Maliyan Samaj, Neem Chowki, Swaimadhopur City,

1. Rajesh Kumar Son Of Shri Hari Ram Mali, R/o Neem Chowki, Khandar Road, Sawaimadhopur City, Tehsil And District Swaimadhpur, Presently President Panch Maliyan Samaj, Neem Chowki, Sawaimadhopur.

2. Radhey Shyam Mali Son Of Late Shri Raghunath Mali, R/o Old Grain Mandi Road, Near Krya Vikrya Sahakari Samiti, City Sawai Madhipur Panch, Panch Maliyan Samaj, Neem Chowki, City Sawaimadhopur.

3. Rajendra @ Raju Son Of Late Shri Kailash Mali, R/o Neem Chowki, Sawaimadhopur City.

4. Ramjilal Son Of Anandilal Mali, R/o Neem Chowki, Sawaimadhopur City.

5. Laddu Lal Son Of Late Shri Bhairulal Mali, R/o Neem Choki, Near Gopalji Maharaj Mandir, Sheopur Road, Sawai Madhopur City (Deceased) Through L/rs.

5/1. Prem Devi Wife Of Laddu Lal, R/o Neem Chowki, Sawai Madhopur City.

5/2. Ganpat Lal Son Of Laddu Lal, R/o Neem Chowki, Sawai Madhopur City.

5/3. Murari Lal Son Of Laddu Lal, R/o Neem Chowki, Sawai Madhopur City.

5.4. Guddi D/o Laddu Lal, Wife Of Sitaram, R/o Pipalwara, Teshil And District Sawaimadhopur.

5/5. Janki D/o Laddu Lal, Wife Of Hukumchand, R/o Bahravanda Khurd, Tehsil Khandar, District Sawaimadhopur.

5/6. Pooni D/o Laddu, Wife Of Suresh, R/o Mandi Road, Aalanpur, Tehsil And District Sawaimadhopur.

6. Nagar Parishad, Sawai Madhopur, Through Commissioner.

7. Nagar Parishad, Sawai Madhopur, Through President.

----Respondents

For Petitioner(s) : Mr.Rahul Kamwar, Adv. For Respondent(s) : Mr.D.D. Khandelwal, Adv. (Through VC).

                                             (3 of 9)                      [CW-9938/2018]


         HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

                                       Order

17/05/2022

           Heard learned counsel for the parties.

The petitioners-defendants have filed S.B. Civil Writ

Petition No.9938/2018 challenging the order dated 15.01.2018,

whereby, the Court below has appointed Commissioner second

time for site inspection. The petitioners filed review application

before the Court below challenging the said order dated

15.01.2018 and the Court below, vide order dated 09.02.2021,

dismissed the review application and as such, the petitioners have

filed S.B. Civil Writ Petition No.7437/2022 challenging the order

dated 09.02.2021.

With the consent of learned counsel for the parties,

both the writ petitions are decided by this common order.

Learned counsel for the petitioners-defendants

submitted that the plaintiffs have filed suit for cancellation of sale

deed, declaration and mandatory injunction.

Learned counsel submitted that the petitioners had filed

an application before the Court below for appointment of

Commissioner to inspect the disputed site and submit site

inspection report.

Learned counsel for the petitioners submitted that one

Advocate was appointed as Commissioner, vide order dated

10.02.2017 and the said Commissioner submitted his site

inspection report and same was prepared in presence of both the

parties and it was signed by both the parties.

Learned counsel for the petitioners submitted that after

submission of the aforesaid site inspection report before the Court

(4 of 9) [CW-9938/2018]

below, again the plaintiffs filed application on 21.03.2017 stating

therein that the said Commissioner while inspecting the site did

not see the gate marked as 'kha' after opening the same, as the

defendants had closed the gate by putting a lock kundi and also

constructed the bricks wall and as such, prayer was made to seek

a direction to the Commissioner to again inspect the disputed site.

Learned counsel for the petitioners submitted that by

impugned order dated 15.01.2018, application of the plaintiffs'

has been allowed and the Commissioner has again been asked to

submit his report on the basis of the facts mentioned in the

application, filed by the plaintiffs.

Learned counsel for the petitioners submitted that the

Court below has allowed the application without due application of

mind and without assigning any reason.

Learned counsel for the petitioners submitted that there

was no occasion to appoint Commissioner for second time, without

discarding the earlier report.

Learned counsel for the petitioners submitted that the

very purpose of appointment of Commissioner is frustrated by the

Court below by permitting collection of the evidence in respect of

possession of the property.

Learned counsel for the petitioners submitted that

settled proposition of law in respect of appointment of

Commissioner, his role and importance, has altogether been

ignored by the Court below and as such, the impugned order

passed by the Court below is required to be set aside by this

Court.

Learned counsel further submitted that the very

purpose of appointment of Commissioner by appointing successive

(5 of 9) [CW-9938/2018]

Commissioner, will create additional evidence before the Court to

take a view of such report being submitted and any lacunae in the

pleadings or evidence of the party, should not be permitted to be

filled by having such successive report.

Learned counsel for the petitioners submitted that

Order 26 Rule 10 CPC provides for Procedure of Commissioner and

sub-Rule (3) of said Rule states that where the Court is for any

reason dissatisfied with the proceedings of the Commissioner then

it may direct further inquiry to be made.

Learned counsel for the petitioners submitted that in

the present case, since the Court has not recorded any

dissatisfaction against proceedings conducted by the

Commissioner and further did not apply due application of mind,

then it could not have directed further inquiry to be made by the

Commissioner.

Learned counsel submitted that until the first

Commissioner's report is not set aside or declared dissatisfactory,

the Court cannot direct to prepare fresh Commissioner report.

Learned counsel for the petitioners places reliance on a

judgment passed in the case of Praveen Parihar Vs. Satish

Kumar Phawa reported in 2017 (3) DNJ 1356. Learned counsel

on the strength of said judgment submitted that the

Commissioner cannot be appointed to collect evidence.

Learned counsel also places reliance on the judgment

passed in the cases of Vemba Gounder Vs. Pooncholai

Gounder reported in [AIR 1996 (Madras) 347] and Swami

Premananda Bharathi Vs. Swami Yogananda Bharathi &

Anr. reported in [1985 AIR (Kerala) 83].

                                           (6 of 9)                     [CW-9938/2018]



            Per   contra,    learned       counsel        for    the   respondents

submitted that both the orders have been rightly passed by the

Court below and no interference is required by this Court.

Learned counsel for the respondents submitted that the

application dated 21.03.2017 had specifically mentioned that while

Commissioner had gone to the site for inspection, he clearly

recorded that gate marked as 'kha' was not open and as such,

there was some hindrance in giving the exact report with regard

to actual physical site.

Learned counsel submitted that player was made in the

application by sending Commissioner to give the exact report with

regard to site in dispute and further, the Court was requested to

give direction to the Commissioner to open the gate and the

factual position with respect to land marked as 'kha' was required

to be given before the court below.

Learned counsel for the respondents submitted that the

Court below, after considering the defendants' application, has

come to conclusion that the Commissioner is required to visit

again for inspection and submit its report stating the factual

situation, as obtaining on the ground in respect of land in dispute

and as such, no injury would be caused to any of the party, if the

Commissioner is permitted to give fresh inspection report.

Learned counsel submitted that it is absolutely incorrect

that the purpose of appointment of Commissioner is to collect

evidence.

Learned counsel submitted that the Court below after

considering the evidence led by the parties, has to decide the suit

and only on the basis of report of the Commissioner, it cannot be

inferred that the said report will be used against any of the party.

(7 of 9) [CW-9938/2018]

I have considered the submissions made by learned

counsel for the parties and perused the material available on

record.

This Court finds that the impugned order dated

15.01.2018 has mentioned that earlier report, which was given by

the Commissioner had not stated any details with respect to the

portion of land, which was marked as kha and as such, the Court

below after considering the facts of the case, came to conclusion

that the site Commissioner was required to inspect the site again

and he was to give fresh report.

The submission of learned counsel for the petitioners

that the Commissioner has been appointed to collect evidence, is

absolutely misplaced. The purpose of appointment of

Commissioner is to know the description of the property and is not

used for the purpose of creating evidence.

This Court finds that as per Order 26 Rule 10, report if

any submitted by a Commissioner, if has to be led in evidence in

the suit and found part of the record, the Court will always afford

opportunity to any of the party and then, examine the

Commissioner personally in open Court and further the manner in

which the investigation has been done, can also be examined by

the Court and further, parties may be afforded opportunity to even

question the manner of investigation being done by the

Commissioner.

This Court finds that merely by appointing

Commissioner, it cannot be inferred that the Commissioner has

been appointed to collect evidence only.

This Court is conscious of the fact that description of

property to decide the suit between the parties is a very important

(8 of 9) [CW-9938/2018]

fact, which needs to be brought before the Court, as what is the

description and location of the property. The Apex Court recently

in the case of Rahul S. Shah Vs. Jinendra Kumar Gandhi &

Ors. reported in [(2021)6 SCC 418] has directed all the Civil

Court/ Executing Courts to appoint Commissioner to know the

exact location/status of the property. The said direction has been

issued by the Apex Court for a simple reason as after judgments/

degrees are passed, then the execution application has to be

decided within a stipulated time.

The submission of learned counsel for the petitioners

that until earlier report of the Commissioner is set aside or Court

is dissatisfied with the proceedings and as such, no successive

Commissioner can be appointed, this Court is afraid to accept the

submission of the learned counsel for the petitioners, as the case

of non-petitioners has been very specific that while preparing the

earlier report, the Commissioner did not have access to a

particular portion of the land and there was some hindrance in

opening the gate.

The reliance placed by counsel for the petitioners on a

judgment reported in the case of Praveen Parihar (supra), the

facts in that case were in respect of dispute being decided by the

Rent Tribunal involving the issue of personal and bona fide

necessity and the Court had appointed a Commissioner to go on

the site and to find out the occupation of the property by a

particular party in a particular portion, the Court in such

background found that if a suit is filed for personal and bona fide

necessity, appointment of Commissioner is not relevant and the

evidence which is brought before the Court below, is more

(9 of 9) [CW-9938/2018]

relevant to decide the controversy. The case of Praveen Parihar

(supra) will not of any assistance.

The reliance placed by learned counsel for the

petitioners in the cases of Vemba Gounder (supra) and Swami

Premananda Bharathi (supra), this Court finds that the Court

in these cases has not considered the similar issue.

This Court, in the facts of the present case, finds that if

it has come on record that the site Commissioner was not able to

have full access for considering the entire location of the property,

it cannot be inferred that the successive Commissioner cannot be

appointed.

Accordingly, there is no force in these present writ

petitions and the same are accordingly dismissed.

A copy of this order be placed in connected petition.

(ASHOK KUMAR GAUR), J

Himanshu Soni/70-71

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