Rajasthan High Court - Jodhpur
Deen Giri vs Prem Bhargav on 11 October, 2023
Bench: Pushpendra Singh Bhati
[2023:RJ-JD:33523]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 14048/2023
Deen Giri S/o Bhagwan Giri, Aged About 63 Years, Kumahar
Pada, Suli Dungar, Jaisalmer.
----Petitioner
Versus
1. Prem Bhargav S/o Babulal, Suli Dungar, Jaisalmer.
2. Ajay Bhargav S/o Babulal, Suli Dungar, Jaisalmer.
3. LRs of Late Radhakishan S/o Indraram Prem Bhargav
i.) Goparam S/o Radha Kishan, Suli Dungar, Jaisalmer.
ii.) Ganpat S/o Radha Kishan, Suli Dungar, Jaisalmer.
4. Kasturararm S/o Indraram, Suli Dungar, Jaisalmer.
----Respondents
For Petitioner(s) : Mr. Aditya Singhi
For Respondent(s) : Mr. Manoj Bhandari, Sr. Advocate
assisted by Mr. Govind Lal
Mr. Leela Dhar Khatri
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment
Reserved on 05/10/2023
Pronounced on 11/10/2023
1. This petition under Articles 226 & 227 of the Constitution of
India has been preferred claiming the following reliefs:
"a.) by an appropriate writ, order or direction, it is humbly
prayed that the present Writ Petition may kindly be allowed
and the Order Dated 28.08.2023 passed by District Judge,
Jaisalmer in Appeal No.21/2023 (Annexure-1) may kindly
be quashed and set aside; and
b.) That if during these proceeding, if commissioner report
may be brought before learned court below, then same may
be declared illegal and may not be allowed to be used while
determining the lis between the parties
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c.) by an appropriate writ, order or direction, it is humbly
prayed that the encroachment done by the Respondent shall
be removed and further restrain to do any act of
encroachment and status quo be maintained; and
d.) Any other order which may be deemed just and proper
in the facts and circumstances of the case may kindly be
passed in favour of the Petitioner and Cost of the writ
petition may kindly be awarded to the petitioner."
2. Brief facts of the case, as placed before this Court by learned
counsel of the petitioner, are that the petitioner instituted a suit
for permanent and perpetual injunction, alongwith application for
temporary injunction, against the respondents, before the learned
Civil Judge (Junior Division), Jaisalmer, which was dismissed vide
vide order 28.07.2023.
2.1. Aggrieved by the order dated 28.07.2023, the petitioner
preferred an appeal under Order 41 Rule 1 along with Section 96
CPC before the learned District Judge, Jaisalmer, Thereafter, the
respondents filed an application before the learned Appellate Court
seeking appointment of Mauka Commissioner for site inspection of
the disputed property to ascertain, amongst others, the actual
status of possession over such property. The learned Appellate
Court vide the impugned order dated 28.08.2023 allowed the said
application, while appointing the Mauka Commissioner for the
aforementioned purpose.
3. Learned counsel for the petitioner submitted that the Mauka
commissioner cannot be appointed for collection of evidence with
regard to possession over the subject property, and therefore, the
impugned order is not justified in law.
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3.1. Learned counsel further submitted that the purpose of the
respondents behind seeking appointment of the Mauka
Commissioner was to bring evidence contrary to the admissions
made during the cross-examination, so as to persuade the Court
to order regularization of an illegal encroachment made upon the
disputed land.
3.2. Learned counsel also submitted that the respondents made
false averments in the application in question for appointment of
Mauka Commissioner, and therefore, the learned Appellate Court
clearly fell into error in passing the impugned order.
3.3. In support of such submissions, learned counsel relied upon
the judgment rendered by Hon'ble High Court of Telengana in the
case of Bandi Samuel Vs Medida Nageswara Rao (Civil
Revision Petition No. 338 of 2016, decided on 04.11.2016).
4. On the other hand, Mr. Manoj Bhandari, learned Senior
Counsel assisted by Mr. Govind Lal & Mr. Leela Dhar Khatri
appearing on behalf of the respondents, while opposing the
aforesaid submissions made on behalf of the petitioner, submitted
that the entire dispute was with regard to false documents,
pertaining to the disputed property, on the basis of which, the
petitioner tried to establish his possession over the disputed
property, which is not permissible in law.
4.1. It was further submitted that the petitioner has shown wrong
description of the land in question, and therefore, it was necessary
to appoint the Mauka Commissioner for preparing the mauka
report of the all corners of the property in question. It was thus
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submitted that the learned Appellate Court has rightly passed the
impugned order of appointment of Mauka Commissioner.
5. Heard learned counsel for the parties as well as perused the
record of the case alongwith judgment cited at the Bar.
6. This Court observes that the petitioner filed the
aforementioned suit, but the same was dismissed on 28.07.2023
by learned Trial Court. Being aggrieved by the same, the petitioner
preferred an appeal before the learned District Judge; during
pendency of the appeal, the respondents filed the application for
appointment of Mauka Commissioner, for the aforementioned
purposes, which was allowed vide the impugned order, and
accordingly, Mauka Commissioner was appointed.
7. This Court further observes that if any dispute arises with
regard to the subject property, proper adjudication whereof is not
possible without calling for the mauka report, then the concerned
Court may appoint the Mauka Commissioner, as per the law. Thus,
in the present case, the appointment of the Mauka Commissioner
for submitting the necessary report, so as to ascertain current and
actual position with regard to possession over the property in
question, is justified in law.
8. This Court also observes that the learned Appellate Court has
also recorded that in the present case, the contents of the
application of the respondents for appointment of the Mauka
Commissioner, for the purposes mentioned therein, warranted
appointment of the Mauka Commissioner, to ascertain the current
and actual position with regard to possession over the subject
property.
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9. This Court, therefore, observes that the learned Appellate
Court has passed the impugned order after taking into due
consideration all the relevant aspects of the case, which does not
call for any interference by this Court in the instant petition.
10. The judgment cited at the Bar on behalf of the petitioner also
does not render any assistance to his case.
11. Thus, in light of the aforesaid observations and looking into
the factual matrix of the present case, this Court does not find it a
fit case so as to grant any relief to the petitioner in the present
petition.
12. Consequently, the present petition is dismissed. All pending
applications stand disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
SKant/-
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