Rajasthan High Court - Jaipur
Bohitaram Maval Puriya &Ors vs Chothmal &Anr on 8 February, 2012
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
In the High Court of Judicature for Rajasthan at Jaipur Bench Jaipur S.B.Civil Writ Petition No.12300/2009 Bohitaram Maval Puriya and ors vs Chothmal and another Date of Order : 08.02.2012 HON'BLE MS. JUSTICE BELA M. TRIVEDI Mr.Praveen Jain for the petitioners By the Court:
1.The petitioners (original-defendants) have challenged the order dated 17.8.2009 passed by the learned Civil Judge (JD) Niwai in T.I. Application No.116/2007 in Civil Suit No.98/2007, whereby the trial court has rejected the objections filed by the petitioners against the report of Patwari dated 10.8.2009.
2.Heard learned counsel Mr. Praveen Jain for the petitioners. Nobody appears for the respondent No.1(original-plaintiff), though duly served with the notice in the present petition.
3.It has been submitted by learned counsel for the petitioners that the objections had been raised against report made by Patwari dated 10.8.2009 as the said report was made by the Patwari without giving any notice to the parties and he had prepared the same at his office. According to him, such report could not be relied upon and therefore the petitioners had prayed for calling of the report from the Settlement Officer in respect of the disputed land.
4.Having regard to the submissions made by learned counsel for the petitioners and to the impugned order passed by the trial court, it appears that initially an application under Order 26 Rule 9 of CPC was made by the petitioners-defendants which was not objected by the respondent-plaintiff and therefore the trial court vide order dated 15.4.2009 had called the report from the Patwari in respect of the disputed land. The Patwari submitted a report which was objected by the petitioners. From the said report, it appears that the parties were not informed to remain present at the disputed site. As such, the Patwari was appointed as the Commissioner under Order 26 Rule 9 of CPC for making local inspection for the purpose of elucidating the matter in dispute. It is always desirable that the Commissioner should prepare the report after informing the concerned parties to remain present on the disputed site. Since the said Patwari who was appointed as Commissioner appears to have not informed the parties, there is substance in the submission of learned counsel for the petitioners that the said report could not be taken into consideration. Since the respondent-plaintiff has also not appeared in the present petition and not objected against the same, it is presumed that the respondent-plaintiff has no objection if the fresh Commissioner is appointed as prayed for in the objection application Annexure-6 filed by the present petitioners.
5.In that view of the matter, the present petition deserves to be allowed. The Settlement Officer, Tonk is appointed as the Commissioner to make local inspection and submit his report in respect of the disputed land, after duly informing the concerned parties to remain present at the site.It is needless to say that despite due intimation the parties do not remain present at the disputed site, the Commissioner shall be at liberty to proceed further in their absence. The petition stands allowed accordingly.
(BELA M. TRIVEDI) J.
om All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Om Prakash pa