Bombay High Court
Syed. Mushtaque Ahmad S/O Syed. Ismail vs Syed Ashique Ali Khan S/O Haidar Ali on 12 July, 2011
Author: R. M. Savant
Bench: R. M. Savant
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.2071/2011
PETITIONERS :- 1. Syed. Mushtaque Ahmad S/o Syed. Ismail,
Aged 52 years, Occupation service,
R/o Achalpur City, Tahsil Achalpur,
District Amravati.
2. Syed. Ishaque Ahmad S/o Syed Ismail,
Aged 35 years, Occupation service,
R/o Achalpur City, District Amravati.
ig 3. Anisa Fatema W/o Mukhtar Ahmad Khan,
Aged 30 years, Occupation service,
R/o Achalpur City, District Amravati.
4. Ishratbano W/o Muntazzimuddin,
Aged 20 years, Occupation service,
R/o Shirajgaon Kasba,
Tahsil Chandur Bazaar, District Amravati.
5. Nusratabano W/o Syed Mubin Ahmad,
Aged 26 years, Occupation service,
R/o Achalpur City, District Amravati.
6. Safoorabano D/o Syed. Ismail,
Aged 24 years, Occupation household,
R/o Achalpur City, District Amravati.
7. Karmabi W/o Syed Ismail,
Aged 75 years, Occupation household,
R/o Achalpur City, District Amravati.
8. Syed Ashfaque Ahmad S/o Syed Ismail,
Aged 32 years, Occupation business,
R/o Kalyan, District Thane.
9. Syed Iliyas Ahmad S/o Syed Ismail,
Aged 32 years, Occupation business,
R/o Kalyan, District Thane.
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...VERSUS...
RESPONDENT :- Syed Ashique Ali Khan S/o Haidar Ali,
Aged 45 years, Occupation service,
Kasadpura, Achalpur City,
District Amravati.
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Shri J. J. Chandurkar, learned counsel for the petitioners. Shri R. L. Khapre & Shri Kavimandan, learned counsel for the respondent.
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CORAM : R. M. SAVANT J.
ig DATED : 12.07.2011
O R A L J U D G M E N T
1) Rule with the consent of the parties made returnable forthwith and
heard.
2) The above petition filed under Articles 226 and 227 of the
Constitution of India takes exception to the order dated 01/04/2011 passed by 4th Joint Civil Judge, Junior Division, Achalpur, by which order the application filed by the respondent for appointment of Court Commissioner came to be allowed and the Taluka Inspector of Land Records was appointed as Court Commissioner to report regarding location and possession of the suit site 'A,B,C,D' and whether there is any construction going on.
::: Downloaded on - 09/06/2013 17:29:28 ::: 1207wp2071.11.odt 3/63) Facts in brief can be stated thus -
The petitioners herein are the original plaintiffs in Regular Civil Suit No.19/2002 wherein the main substantive relief claimed is the declaration of the said sale deed dated 12/01/2000 as null and void and for its cancellation. The petitioners-plaintiffs have also prayed that they be put in possession of suit site A,B,C,D shown in amended plaint map, after demolishing the whole construction thereon. The consequential relief of injunction that the respondent-defendant No.1 should not construct on suit site at any time was also sought by the plaintiffs. The respondent herein, who was the defendant No.1, in the said suit along with other defendants filed their written statement wherein they have denied the claims and contentions of the plaintiffs. It appears that the application for temporary injunction filed by the petitioners came to be rejected and it was held that the defendant i.e. the respondent herein is in possession of the suit property in question.
4) On the basis of the pleadings of the parties, the issues were framed in the said suit. It would be relevant to note that issue Nos.2 and 4 have been framed on the basis of the prayer sought by the plaintiffs in the said suit. The said two issues are reproduced here under -
Issue No.2. Whether the plaintiffs prove that the sale deed of suit site dated 12/01/2000 is null and void ? and Issue No.4. Whether the plaintiffs prove that they are entitled to possession of suit site A,B,C,D ?
::: Downloaded on - 09/06/2013 17:29:28 ::: 1207wp2071.11.odt 4/6It is pertinent to note that there is no issue of any encroachment or boundary dispute or identity of the property in question.
5) The respondent herein, who is the defendant No.1 in the said suit filed an application for appointment of Court Commissioner to survey the suit property and prepare a map thereof. The said application came to be allowed by the impugned order dated 01/04/2011 on the ground that since the issue is relating to the suit site A,B,C,D portion, it is proper to appoint an expert. It was further held that the same would help the Civil Court to decide the suit effectively. The trial Court was of the view that the issue relating to the alleged construction on the suit site A,B,C,D and whether the suit site A,B,C,D is in possession of the plaintiff or the defendant No.1 could be determined on the basis of the report of the Commissioner. As indicated above, it is the said order, which is impugned in the present petition.
6) Heard the learned counsel for the parties.
7) It is the contention of the learned counsel for the petitioner that in
view of the issue that arises for consideration in the said suit, the appointment of Court Commissioner was not warranted and if the Court Commissioner to carry out the commission it would amount to collecting evidence which is impermissible.
::: Downloaded on - 09/06/2013 17:29:28 ::: 1207wp2071.11.odt 5/68) Per contra, it was the submission of the learned counsel for the respondent that the order of the trial Court appointing the Court Commissioner could not be faulted with. The learned counsel for the respondent relied upon the judgment of learned Single Judge of this Court reported in 2010 (3) Mh.L.J. 956 in the matter of Yeshwant Bhaduji Ghuse vs. Vithobaji Laxman Ladekar.
9) As mentioned herein above the suit in question does not contain any boundary dispute or any dispute as regards any encroachment wherein a report of the Court Commissioner would facilitate the Civil Court in arriving at a decision. The challenge in the said suit is to the sale deed dated 12/01/2000 and if the plaintiffs would get the said relief, then consequential relief of injunction as regards possession of the suit portion A,B,C,D, in respect of which there is no dispute, can be handed over to the plaintiffs. In the context of the issue that arises in the said suit, in my view, the appointment of Court Commissioner by the impugned order is totally unwarranted. It is well settled by catena of judgment of this Court as well as the Apex Court that the Court Commissioner cannot be appointed to collect evidence. The impugned order ex facie discloses that the Court Commissioner is directed to report on the aspect of possession and to the extent of the construction carried out by the respondent. In my ::: Downloaded on - 09/06/2013 17:29:28 ::: 1207wp2071.11.odt 6/6 view, it would amount to collection of evidence, which is not permissible in respect of a commissioner appointed under Order 26 Rule 9 of the Civil Procedure Code. In that view of the matter, the impugned order dated 01/04/2011 cannot be sustained and is required to be set aside and is accordingly set aside.
10) Rule is accordingly made absolute. The parties to bear their respective costs.
ig JUDGE
KHUNTE
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