Raj Kumar S/O Ram Chandra vs Brij Mohan S/O Late Shri Bajrang ...
2022 Latest Caselaw 7406 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

                S.B. Civil Writ Petition No. 11871/2021

Raj Kumar S/o Ram Chandra, Aged About 67 Years, R/o
Aalanpur Presently At Ran Thambor Circle, Station Road, Sawai
Madhopur, Tehsil And District Sawai Madhopur (Raj.)
                                                                     ----Petitioner
                                    Versus
1.     Brij Mohan S/o Late Shri Bajrang Lal, Aged About 60
       Years, R/o Village Phallodi Kawari, Tehsil And District
       Sawai Madhopur.
2.     State Of Rajasthan, Through Tehsildar Sawai Madhopur.
                                                                  ----Respondents

For Petitioner(s) : Mr. Brij Bhushan Ojha, Adv.

For Respondent(s) : Mr. Tarun Jain, Adv.

HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA

Order

22/11/2022

This Civil Writ Petition has been filed by the petitioner

against the order dated 15.04.2021 passed by learned District

Judge Sawai Madhopur in Miscellaneous Application No.08/2020,

whereby application under Order 26 Rule 9 CPC for appointment of

Commissioner and for calling factual report of the illegal

encroachment upon the petitioners land Khasra No.322 & 323 was

dismissed.

Learned counsel for the petitioner submits that the

petitioner had filed a suit against respondent No.1 in which

petitioner clearly stated the respondent No.1 had encroached upon

his land. So, he had filed an application before the learned trial

Court under Order 26 Rule 9 CPC but learned trial Court vide order

(2 of 3) [CW-11871/2021]

dated 15.04.2021 wrongly dismissed the application filed by the

petitioner. Learned counsel for the petitioner further submits that

the respondent had encroached upon the land of Khatedari Khasra

Nos.322, 323 and constructed a shop upon 15.77 Sq. feet.

Learned counsel for the petitioner further submits that the

petitioner had filed an application before the learned trial Court

that a Tehsildar be appointed as Commissioner for local inspection

and for procuring a report regarding encroachment of the land.

Learned counsel for the petitioner has placed reliance

upon the judgment passed by the Hon'ble Apex Court in the case

of Haryana WAQF Board Vs. Shanti Sarup & Others reported

in (2008) 8 SCC 671.

Learned counsel for the petitioner has also placed

reliance upon the judgment passed by this Court in the case of

Ravindra Nath & Ors Vs. Piyush Kumar Joshi reported in

2019 (3) DNJ (Raj.) 1183.

Learned counsel for the respondent has opposed the

arguments advanced by learned counsel for the petitioner and

submitted that the learned trial Court rightly rejected the

application filed by the petitioner that for collection of the

evidence, Commissioner cannot be appointed. So, petition be

dismissed.

I have considered the arguments advanced by learned

counsel for the petitioner as well as learned counsel for the

respondent and perused the impugned order.

It is an admitted position that petitioner in civil suit

clearly stated that respondent had encroached upon his land and

built a shop upon 15.77 Sq. feet. These facts can only be clarified

by way of the Commissioner's report. So in my considered

(3 of 3) [CW-11871/2021]

opinion, learned trial Court wrongly rejected the application filed

by the petitioner. So, petition filed by the petitioner deserves to be

allowed.

Therefore, petition filed by the petitioner is allowed.

Order of the learned trial Court dated 15.04.2021 is set-aside.

Learned trial Court is directed to appoint a Commissioner as

Tehsildar for procuring the report regarding encroachment upon

the land of the petitioner.

Stay application stands disposed of.

(NARENDRA SINGH DHADDHA),J

Gourav/10

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