Kachri vs Kanti Lal
2023 Latest Caselaw 7002 Raj

[2023:RJ-JD:28268]




      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                 S.B. Civil Writ Petition No. 5435/2019

1.       Kachri D/o Shri Jeeva Balai, Aged About 51 Years, By
         Caste Bunkar, Resident Of Lokiya, Tehsil Gadhi, District
         Banswara (Raj.)
2.       Dhuli D/o Shri Jeeva Balai,, Aged About 40 Years, By
         Caste Bunkar, Resident Of Lokiya, Tehsil Gadhi, District
         Banswara (Raj.)
3.       Bhaaniya S/o Shri Bhura Balai,, Aged About 75 Years, By
         Caste Bunkar, Resident Of Lokiya, Tehsil Gadhi, District
         Banswara (Raj.)
4.       Kushal S/o Shri Narayan Lal Balai,, Aged About 43 Years,
         By Caste Bunkar, Resident Of Lokiya, Tehsil Gadhi,
         District Banswara (Raj.)
5.       Rajendra S/o Shri Narayan Lal Balai,, Aged About 39
         Years, By Caste Bunkar, Resident Of Lokiya, Tehsil Gadhi,
         District Banswara (Raj.)
6.       Pramila, Aged About 35 Years, By Caste Bunkar, Resident
         Of Lokiya, Tehsil Gadhi, District Banswara (Raj.)
7.       Parth S/o Late Shri Narendra Balai, Aged About 14 Years,
         By Caste Bunkar, Minor Through Natural Guardian Smt.
         Pramila Wd/o Late Shri Narendra Balai, Resident Of
         Lokiya, Tehsil Gadhi, District Banswara (Raj.)
                                                                 ----Petitioners
                                    Versus
1.       Kanti Lal S/o Shri Poonam Chand Panchal, Resident Of
         Arthuna, Tehsil Gadhi, District Banswara.
2.       Gulab Chand S/o Shri Poonam Chand Panchal,, Resident
         Of Arthuna, Tehsil Gadhi, District Banswara.
3.       Maan Mal S/o Shri Fauj Mal,, By Caste Jain, Resident Of
         Arthuna, Tehsil Gadhi, District Banswara.
4.       Mukesh S/o Shri Fauj Mal,, By Caste Jain, Resident Of
         Arthuna, Tehsil Gadhi, District Banswara.
5.       Pankaj S/o Shri Fauj Mal,, By Caste Jain, Resident Of
         Arthuna, Tehsil Gadhi, District Banswara.



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 [2023:RJ-JD:28268]                      (2 of 8)                         [CW-5435/2019]


6.       Chandraveer Singh S/o Shri Dhul Singh,, By Caste
         Rajput,     Resident      Of     Arthuna,       Tehsil      Gadhi,    District
         Banswara.
7.       Devendra Singh S/o Shri Dhul Singh,, By Caste Rajput,
         Resident Of Arthuna, Tehsil Gadhi, District Banswara.
8.       Janki Devi, By Caste Rajput, Resident Of Arthuna, Tehsil
         Gadhi, District Banswara.
                                                                    ----Respondents


For Petitioner(s)            :    Mr. RK Thanvi, Sr. Adv., assisted by
                                  Mr. Mahendra Thanvi
For Respondent(s)            :    Mr. D.K. Godara



               HON'BLE DR. JUSTICE NUPUR BHATI

                                  JUDGMENT

Reserved on               : 05/09/2023
Pronounced on             : 11/09/2023

1. Though this matter has been listed in the "For Orders"

category, but with the consent of learned counsel for both the

parties, the matter has been finally heard.

2. The instant writ petition has been preferred by the

petitioners under Article 227 of the Constitution of India with the

following prayers:-

"(i) quash the impugned order dated 29.03.2019 (Annexure-8) passed by the Learned Civil Judge, Gadhi, District Banswara in Civil Misc. Case No. 21/2017; and

(ii) the application filed by the respondents Under Order 39 Rule 7 C.P.C. may be dismissed with costs in toto; and

(iii) any other appropriate relief which this Hon'ble Court deems fit necessary in the fact and circumstances of the present case be granted in favour of the petitioners; and

(iv) Cost of the writ petition kindly ordered to be awarded to the petitioners."

[2023:RJ-JD:28268] (3 of 8) [CW-5435/2019]

3. Brief facts of the case are that respondents-plaintiffs filed a

suit for permanent injunction against the petitioners-defendants

regarding their jointly owned and possessed land situated in Araji

No.508 Old No. 678,679 admeasuring 775 square yards of Village

Lokiya, Patwar Halka Arthuna, Tehsil Gadhi, District Banswara

which was purchased from one Daya Lal and others on

28.07.1983 and thereafter the same was converted into Abadi

land by the order of Collector dated 24.02.1986.

4. The suit No.16/2017 was filed stating therein that the

petitioner-defendants are encroaching upon the respondents-

plaintiffs' jointly owned and possessed land and that the

petitioners- defendants have dismantled the boundary wall

constructed by the respondents-plaintiffs using the JCB machine

at the land in question. Along with the suit, a temporary injunction

application was also filed by the respondents-plaintiffs. The

petitioners-defendants filed a detailed written statement to the

plaint and the temporary injunction application filed by the

respondents-plaintiffs. Thereafter, the learned Civil Judge (JD),

Gadi, Banswara (hereinafter referred to as 'the learned trial

Court'), passed an interim order dated 25.05.2017 (Annex.3) and

directed both the parties to maintain status quo.

5. During the pendency of the suit, the respondents-plaintiffs

moved an application seeking appointment of Commissioner for

site inspection, which was allowed by the learned trial Court, and

[2023:RJ-JD:28268] (4 of 8) [CW-5435/2019]

the Commissioner so appointed submitted his report dated

27.05.2017 (Annex.2).

6. The respondents-plaintiffs thereafter filed a contempt

petition dated 31.05.2017 (Annex.4) under Order 39 Rule 2A of

the Civil procedure Code 1908 (hereinafter referred to as CPC" for

short) before the learned trial court against the petitioners to

which a reply (Annex.5) was filed by the petitioners stating therein

that they have not raised any kind of construction over the land in

question.

7. Thereafter the respondents-plaintiffs filed an application

under Order 39 Rule 7 CPC seeking appointment of site

commissioner and seeking report from him, which was allowed by

the learned trial Court vide order dated 29.03.2019 (Annex.8) and

again appointed a Commissioner.

8. Hence, being aggrieved of the order dated 29.03.2019

(Annex.8), the petitioners have preferred the present writ petition.

9. Learned counsel for the petitioners-defendants made

following submissions:-

(a) That the learned trial Court has committed grave illegality

and irregularity in passing the impugned order and appointing

second commissioner in the matter as there was no occasion for

the same when there was already a report regarding the land in

question submitted by the Commissioner.

(b) That application for appointment of Commissioner cannot be

taken into consideration on mere application of a party. The

[2023:RJ-JD:28268] (5 of 8) [CW-5435/2019]

learned trial Court, without application of mind and without

considering all the aspects of the matter, has allowed the

application seeking appointment of second commissioner, which is

not permissible in the eye of law as it is settled legal proposition of

law that Commissioner cannot be appointed for the purpose of

collecting evidence. In the case in hand, the respondents-

plaintiffs, in the garb of report of Commissioner, want to collect

evidence in their favour for adjudication of contempt petition,

which is not permissible in the eye of law.

(c) That neither the learned trial Court has given any cogent

finding for allowing the application for appointment of second

Commissioner nor the respondents-plaintiffs have mentioned any

reason for seeking report from Commissioner and thus, the

respondents-plaintiffs only want to seek evidence in their favour

for adjudication of the contempt petition.

(d) That allowing appointment of second commissioner would

not only lead to the mis-trial of the suit but also will result into

miscarriage of justice.

(e) That the learned trial Court has committed grave error of law

in allowing the application of the respondents-plaintiffs without

considering the fact that there is already a report of commissioner

in the matter and unless any objection is raised regarding the

report of the first commissioner by either of the party, second

commissioner cannot be appointed and in the present case, no

such objection was raised by either party and thus, the impugned

order deserves to be quashed and set aside.

[2023:RJ-JD:28268] (6 of 8) [CW-5435/2019]

10. In support of his submissions made above, learned counsel

for the petitioners-defendants placed reliance upon the judgments

rendered in the cases of Rakamchand & Ors. Vs. Rukmani

[2022(2) CCC 649 (Rajasthan)], Gopalkrishnan Vs. P.

Shanmugam [AIR 1995 Madras 274] and R. Vijayudu Vs. N.

Ramachandra Reddy [2004 AIHC 4322 (A.P.)].

11. Per contra, learned counsel for the respondents-plaintiffs

supported the impugned order and made following submissions:-

(a) That the learned trial Court has passed the impugned order

while considering all the aspects of the matter and thus, it cannot

be said to be a non-speaking order, rather it is a detailed order

and there is no lacuna whatsoever as the impugned order has

been passed after deliberate examination of the facts and

circumstances of the case, so also the law involved.

(b) That it is the discretion of the learned trial Court to appoint

commissioner to fetch exact and correct situation of the disputed

land for proper disposal for the matter.

(c) That it is apparent from the reply to the contempt petition

filed by the petitioners-defendants that the petitioners-defendants

have raised construction and thus, it became necessary to verify

the current status of the disputed land for which appointment of

commissioner was necessary and thus, the learned trial Court has

not committed any error of law in allowing the application.

12. Heard learned counsel for the parties and perused the

material available on record.

[2023:RJ-JD:28268] (7 of 8) [CW-5435/2019]

13. This Court is of the considered view that the application of

the respondents-plaintiffs was filed with the intent to demonstrate

before the learned trial Court that despite the order of status quo

granted by the learned trial Court, the petitioners-defendants

have raised construction on the land in dispute, which was denied

by the petitioners-defendants in the reply filed in the contempt

proceedings before the learned trial Court. However, in order to

ascertain whether the petitioners-defendants have not obeyed the

order dated 25.05.2017 (annex.3) and have willfully committed

contempt, it was necessary to appoint a Commissioner. The

second Commissioner has not been appointed in the Suit

No.16/2017, pending before the learned trial Court. On the

contrary, the Commissioner has been appointed on account of

contention of the respondents-plaintiffs that the petitioners-

defendants have willfully disobeyed the order dated 25.05.2017

(Annex.3) passed by the learned trial Court raising construction on

the land in question and the learned trial Court has rightly

observed that appointment of the Commissioner in the contempt

proceedings would not amount to collecting evidence by the

respondents-plaintiffs in his favour. The petitioners-defendants, in

the reply to the contempt proceedings, admitted that they have

raised construction but not on the land in dispute, thus, it

becomes necessary to ascertain the present status and condition

of the land in dispute by way of appointing a Commissioner.

14. In view of the above, this Court does not find any ground to

interfere with the order dated 29.03.2019 (Annex.8) passed by

the learned Civil Judge (JD), Gadi, Banswara in Suit No.16/2017

[2023:RJ-JD:28268] (8 of 8) [CW-5435/2019]

and the writ petition is, therefore, dismissed being devoid of any

merit.

15. The stay application and all other pending applications, if

any, also stand dismissed.

(DR. NUPUR BHATI),J

-/skm/-

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