Gujarat High Court
Kirtilal Uttamlal Panchal vs Soni Champaben Manilal on 15 November, 2021
Author: B.N. Karia
Bench: B.N. Karia
C/SCA/712/2016 JUDGMENT DATED: 15/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 712 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KIRTILAL UTTAMLAL PANCHAL
Versus
SONI CHAMPABEN MANILAL & 2 other(s)
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Appearance:
MS ARCHANA R ACHARYA(2475) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Respondent(s) No. 3
NOTICE SERVED(4) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 15/11/2021
ORAL JUDGMENT
1. Rule returnable forthwith. Leaned advocate Mr. S.P. Majmudar waives service of notice of rule for and on behalf of respondent No.3.
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C/SCA/712/2016 JUDGMENT DATED: 15/11/2021
2. By way of preferring this petition, present petitioner who is the original plaintiff before the trial court in Regular Civil Suit No.26 of 2011, has challenged the legality and validity of the order dated 22.04.2015 passed by learned 7 th Additional Civil Judge, Palanpur below application Exh.41 preferred by the present petitioner under Order 26 Rule 9 as well as Order 39 Rule 7 read with Section 151 of the Code of Civil Procedure.
3. Short facts of the present case may be referred as under:
The plaintiff purchased the suit property through power of attorney holder of Mr. Kantilal Jangamal Vaghela and Ms. Valiben Kantilal Vaghela by registered sale deed No.23 on 02.01.2002. Name of the plaintiff was recorded in revenue records vide M.E. No.16895 and since year- 2002, he was in peaceful possession of the suit land. In the year-2003, plaintiff filed a Regular Civil Suit No.324 of 2003 against Mr. Kantilal Jangamal Vaghela and Ms. Valiben Kantilal Vaghela before the Civil Court, Palanpur for declaration and permanent injunction in respect of the suit property. Alongwith the suit, plaintiff filed an application for interim injunction below Exh.5 praying to restrain the defendants from putting up any construction on the suit land and Page 2 of 16 Downloaded on : Wed Jan 12 00:49:16 IST 2022 C/SCA/712/2016 JUDGMENT DATED: 15/11/2021 to demolish the constructions of Ordi put up by the defendants over the suit land. Learned Civil Judge, Palanpr, vide order dated 15.12.2004, was pleased to allow the application Exh.5 directing the defendants therein from putting up any construction in the suit land. The suit was decided by the learned Additional Senior Civil Judge, Palanpur vide order dated 13.08.2007 in favour of the plaintiff/petitioner directing the defendants not to put up any construction on the suit land and to demolish the wall constructed on the suit land. The court observed that power of attorney dated 01.01.2002 executed by Mr. Kantilal Jangamal Vaghela and Ms. Valiben Kantilal Vaghela in favour of Mr. Bhikhabhai Virchandbhai Panchal was neither challenged nor any evidence was produced to establish that the said power of attorney was forged, and therefore, the power of attorney dated 01.01.2002 was genuine one. However, suit land was already sold in favour of the plaintiff and decree was passed in his favour, They said Mr. Kantilal Jangamal Vaghela and Ms. Valiben Kantilal Vaghela sold the suit property in favour of the respondent No.1 by registered sale deed No.3645, which was entered in the revenue record on 15.10.2009. Again on 07.01.2010, respondent No.1 sold the suit Page 3 of 16 Downloaded on : Wed Jan 12 00:49:16 IST 2022 C/SCA/712/2016 JUDGMENT DATED: 15/11/2021 property to respondent No.2 by registered sale deed No.138 and entry was made in the revenue record on 16.01.2010. The plaintiff challenged the aforesaid entry before the learned Deputy Collector in R.T.S. Appeal No.228 of 2010. Again on 05.02.2011, the suit property was sold to respondent No.3 by respondent No.2 by executing registered sale deed No.731. On 09.02.2011, plaintiff filed Regular Civil Suit No.26 of 2011 before the learned Principal Senior Civil Judge against the respondent Nos.1 and 2 restraining for demolition of construction, permanent injunction and not to disturb the possession of the plaintiff by defendants. Plaintiff also filed an application below Exh.6 under Order 26 Rule 9 of the C.P.C. for appointment of Court Commissioner and for drawing panchnama of the suit land. The learned trial court was pleased to allow the application Exh. 6 vide order dated 21.02.2011 and court commissioner carried out the panchnama on 26.02.2011.Court Commissioner also submitted his report on 28.02.2011 stating that there is construction of walls and pillars in the suit land and construction activity is going on. The learned Additional Civil Judge, Palanpur was pleased to pass an order to maintain status quo of the suit land as existed at the time of drawing the Page 4 of 16 Downloaded on : Wed Jan 12 00:49:16 IST 2022 C/SCA/712/2016 JUDGMENT DATED: 15/11/2021 panchnama on 31.03.2011. The plaintiff filed an application Exh.17 on 02.05.2011 for joining the respondent No.3 as party defendant No.3 in Regular Civil Suit No.26 of 2011. Execution Petition No.22 of 2011 was also filed by the plaintiff on 10.10.2011 wherein the Executing Court directed the defendants i.e. Mr. Kantilal Jangamal Vaghela and Ms. Valiben Kantilal Vaghela not to put up any construction on the suit land and to demolish the wall constructed on the suit land. An application Exh.17 preferred by the plaintiff to implead respondent No.3 as party defendant No.3 was allowed by the trial court on 09.12.2012. The plaintiff filed an application below Exh.41 under Order 26 Rule 9 read with Order 39 Rule 7 as well as under
Section 151 of the C.P.C on 18.12.2012 for drawing the panchnama through Court Commissioner and preparing map stating that defendants have prepared to dig the land for construction. They are going to change the situation of the suit land. Description of the suit land was given in the application Exh.41 and requested to prepare a panchnama in detail as well as the map by appointing the court commissioner. The learned Trial Court rejected the application Exh.41 filed by the plaintiff vide Page 5 of 16 Downloaded on : Wed Jan 12 00:49:16 IST 2022 C/SCA/712/2016 JUDGMENT DATED: 15/11/2021 order dated 22.04.2015. Hence, this petition.
4. Heard learned advocate Ms. Archana Acharya for the petitioner and learned advocate Mr. S.P. Majmudar for the respondent No.3.
5. It is submitted by learned advocate for the petitioner that the impugned order passed by the trial court rejecting the application Exh.41 for appointment of the court commissioner is clearly against the provisions under Order 26 Rule 9 of the C.P.C. That in earlier round, application Exh.6 was filed by the original plaintiff to appoint the court commissioner, which was allowed on 26.02.2011. In pursuance of the ordered appointing the court commissioner, a report was submitted by the court commissioner on 28.02.2011 wherein it was found that construction of walls and pillars in the suit land were found and construction activity was going on. It is further submitted that application for interim injunction was allowed by the court vide order dated 06.01.2013 in favour of the present plaintiff restraining defendants from carrying out any further construction until final disposal of the suit. That however, clear order of interim injunction was passed by this Court on 06.01.2013, respondent No.3 continued to put up Page 6 of 16 Downloaded on : Wed Jan 12 00:49:16 IST 2022 C/SCA/712/2016 JUDGMENT DATED: 15/11/2021 the construction on the subject land, and therefore, the plaintiff was constrained to file the application Exh.41 with a view to ascertain as to whether respondent No.3 is continuing and putting up further construction on the subject land, however, the trial court dismissed the application illegally. It is further submitted that first application Exh.6 was filed by the plaintiff prior to the injunction order granted in favour of the plaintiff. Application Exh.41 was filed after the injunction order dated 06.01.2013. That activity of construction was continued by the defendant No.3 even after the injunction order passed by the trial court, and therefore, it was necessary for the plaintiff to put the correct situation of the suit land before the court below, however, trial court failed to appreciate that by rejecting application Exh.41, plaintiff will not be able to prove his case against the respondent No.3 continuing to put up the construction even after the injunction order. That there was no question of creating any evidence by the plaintiff against the defendant. To ascertain the facts, it was necessary to direct the court commissioner to draw the panchnama as prayed in the application Exh.41, which would assist the court to elucidate the matter in dispute. It is further submitted that observations made by Page 7 of 16 Downloaded on : Wed Jan 12 00:49:16 IST 2022 C/SCA/712/2016 JUDGMENT DATED: 15/11/2021 the trial court while rejecting the application Exh.41 are not legal and proper. Hence, it was requested by learned advocate for the petitioner to quash and set aside the impugned order dated 22.04.2015 passed below Exh.41 by learned 7 th Additional Civil Judge, Palanpur in Regular Civil Suit No.26 of 2011.
6. Per contra, learned advocate appearing for the respondent No.3 has strongly objected the submissions made by learned advocate for the petitioner and submitted that the previous application below Exh.6 filed under Order 26 Rule 9 of the C.P.C. for appointment of the court commissioner and drawing panchnama of the suit land, was allowed vide order dated 21.01.2011 and panchnama was drawn on 26.02.2011. That no further construction was undertaken by the respondent No.3. It is further submitted that subsequent application Exh.41 was vexatious on the part of the plaintiff after carrying out the panchnama as per the order passed below Exh.6 on 26.02.2011 and order dated 31.03.2011 directing the parties to maintain status quo in respect of the suit land. That it was the motive of the plaintiff to create evidence against the respondent No.3. It is further submitted that plaintiff can produce sufficient evidence Page 8 of 16 Downloaded on : Wed Jan 12 00:49:16 IST 2022 C/SCA/712/2016 JUDGMENT DATED: 15/11/2021 before the court to show, if any, further construction was made by the respondent No.3. That appointment of court commissioner cannot be made to collect evidence as attempted by the plaintiff. That impugned order is fair and proper as well as legal and no interference can be warranted by this Court. In support of his arguments, learned advocate for the respondent No.3 has relied upon the judgments reported in (2010) JX (Guj) 778 and (2018) 2 Maharashtra Law Journal Page 255.
7. Having heard learned advocates for the respective parties as well as documentary evidence produced on record, it is not in dispute that in earlier round of litigation i.e. Regular Civil Suit No.324 of 2003 filed by the plaintiff, judgment and decree was passed on 13.08.2007 in favour of the plaintiff. The defendants in the aforesaid suit were directed not to put up any construction on the suit land and to demolish the wall constructed on the suit land. It also appears that the suit land was purchased by the present plaintiff by registered sale deed dated 02.01.2002. Thereafter Mr. Kantilal Jangamal Vaghela and Ms. Valiben Kantilal Vaghela from whom the suit land was purchased by the plaintiff, sold his suit land to respondent No.1 by registered sale deed No.3645 on Page 9 of 16 Downloaded on : Wed Jan 12 00:49:16 IST 2022 C/SCA/712/2016 JUDGMENT DATED: 15/11/2021 03.10.2009. Again respondent no.1 sold the suit land to respondent No.2 by registered sale deed No.138 on 07.01.2010. Respondent No.2 again sold the suit land to respondent No.3 by registered sale deed No.731 on 05.02.2011. The plaintiff filed Regular Civil Suit No.26 of 2011 before the learned Principal Senior Civil Judge against the respondent Nos.1 and 2. In the said suit, an application Exh.6 was filed by the plaintiff under Order 26 Rule 9 of C.P.C. for appointment of court commissioner and drawing panchnama of the suit land on 22.02.2011, which was allowed by the court on the very same day. Court commissioner carried out the panchnama of the suit land on 26.02.2011 and submitted his report on 28.02.2011 stating that there was a construction of walls and pillars in the suit land and construction activity was going on. The learned Civil Court, Palanpur also directed the parties to maintain status quo of the suit land as existed at the time of panchnama on 31.03.2011.
8. The plaintiff prayed in his application Exh.17 on 02.05.2011 for joining the respondent No.3 as party defendant No.3 in Regular Civil Suit No.26 of 2011. The learned Trial Court was pleased to allow the application Exh.17 vide order dated Page 10 of 16 Downloaded on : Wed Jan 12 00:49:16 IST 2022 C/SCA/712/2016 JUDGMENT DATED: 15/11/2021 09.12.2012 and impleaded respondent No.3 as party defendant No.3 in the suit. Plaintiff again filed fresh application Exh.41 on 18.12.2012 under Order 26 Rule 9 read with Order 39 Rule 7 and Section 151 of the C.P.C. for drawing the panchnama through court commissioner and prepare map as respondents have digged the land and prepared to start construction and thereby likely to change the status and location of the suit land.
9. It also requires to be considered that on 06.01.2013, after hearing all the respondents, application Exh.5 for interim injunction was granted by the trial court in favour of the plaintiff restraining the respondents from carrying out any further construction until the final disposal of the suit. The previous application Exh.6 was filed by the plaintiff before granting interim injunction dated 06.01.2013. While submitting the report by the court commissioner on 28.02.2011 and preparing the panchnama, it was clearly stated that there was construction of walls and pillars in the suit land and construction activity is going on. Present respondent No.3 was already on record while allowing application Exh.17 preferred by the plaintiff vide order dated 09.12.2012. Thereafter, vide order dated 06.01.2013, interim Page 11 of 16 Downloaded on : Wed Jan 12 00:49:16 IST 2022 C/SCA/712/2016 JUDGMENT DATED: 15/11/2021 injunction was granted by the trial court in favour of the plaintiff. In a subsequent application Exh.41, it was clearly stated by the plaintiff that in the suit land digging activity as well as preparation of construction was made by the respondents and there is possibility to change the status and location of the suit land, narration of the suit land was also given, and therefore, requested to prepare the panchnama as well as map through court commissioner by appointing the court commissioner.
10. As per the application Exh.41 preferred by the plaintiff, it was clearly stated that the respondents were preparing to start construction by digging the suit land and were trying to change the location as well as status of the suit property. It was necessary for the court to put on record the real situation/status of the suit property by appointing the court commissioner and prepare a panchnama through him. It has come on record that the suit land was purchased by the plaintiff by registered sale deed on 02.01.2002. Judgment and decree were passed in favour of the plaintiff in Regular Civil Suit No.324 of 2003. Respondent No.1, sold the suit property to respondent No.2, and thereafter, respondent No.2 sold the suit property to respondent No.3 on Page 12 of 16 Downloaded on : Wed Jan 12 00:49:16 IST 2022 C/SCA/712/2016 JUDGMENT DATED: 15/11/2021 05.02.2011. In a previous report submitted by the court commissioner as per the order below Exh.6 dated 28.02.2011, it was clearly stated that there was a construction of wall and pillars in the suit land and construction activity is going on.
11. Considering the peculiar facts of the present case, there was no reason to deny the appointment of the court commissioner and prepare a panchnama of the suit land as prayed by the plaintiff in his application Exh.41 because preparing a panchnama by appointing court commissioner, no prejudice is likely to be caused to the respondents. Correct situation of the suit property would require to be placed before the court. There was no question of creating any evidence by the plaintiff if the application Exh.41 would be allowed by the court. As per the order passed by the court below on 31.03.2011 to maintain status quo by the parties was required to be complied with by the parties in the suit. If any attempt is made by the respondent No.3 of making any construction or further construction as alleged in the application Exh.41 must be placed on record through the court commissioner by preparing a panchnama as requested.
12. In case of Kanabhai Vishrambhai Gadhvi versus Jenabhai Page 13 of 16 Downloaded on : Wed Jan 12 00:49:16 IST 2022 C/SCA/712/2016 JUDGMENT DATED: 15/11/2021 Ali Bhukea reported in (2010) JX (Guj) 778, this court has observed as under:
"6. Learned Counsel appearing for the respondent contended that Court Commissioner in present facts could not have been appointed as it would have amounted to helping the petitioner in creating evidence as it is not a dispute with regard to boundary and over lapping boundaries but the very title of the suit premises in question. Learned Counsel for the respondent relied on two decisions: (i) 1991 (2) GLH 580 in case of Kishore Kumar and Ors. v. Rajesh kumar Jayprakash Agrawal & ors; and (ii) AIR 1989 Orissa 118, in case of Basanta Kumar Swain v. Baidya Kumar Parida and Ors., contended that the Court Commissioner in these facts and circumstances could not have been appointed."
13. In case of Dhondiram Nivrutti Pawar (since deceased) through L.Rs. Dhanaji Dhondiram Pawar and others versus Laxman Khashaba Pawar and others reported in (2018)2 Maharashtra Law Journal Page 255, Hon'ble High Court of Maharashtra has observed as under:
7. At this stage, Respondents have filed the present application for appointment of 'Court Commissioner' and, that too, only for the purpose of bringing on record the factual position that the plots are already made in the suit land and each plot is having separate water chamber. Needless to state that, the appointment of 'Court Commissioner' is just for collection of evidence, in order to enable the Respondents-Plaintiffs to prove Page 14 of 16 Downloaded on : Wed Jan 12 00:49:16 IST 2022 C/SCA/712/2016 JUDGMENT DATED: 15/11/2021 their prima-facie case for getting the relief of interim injunction. The law is fairly well settled that, the 'Court Commissioner' cannot be appointed for the purpose of collection of evidence and the impugned order of the Trial Court is exactly against this settled position of law.
8. Learned counsel for the Respondents has relied upon the Judgment of this Court in the case of Smt. Lalitprabha Krishnaji Ajgaokar (Since Deceased), through LRs. & Ors. Vs. Shri Yunus Khan (in Writ Petition No.354 of 2016, along with connected matters; dated 15th October 2016), to submit that, "Under Order 26 Rule 9 of CPC, a Commission to make local investigation can be issued, where the Court deems such a local investigation to be requisite or proper for the purpose of "elucidating any matter in dispute" or for ascertaining the market-value of any property, or, the amount of any mesne profits or damages or annual net profits to the properties."
9. However, in the instant case, there is nothing to be elucidated by appointment of 'Court Commissioner', as it is for the Respondents-
Plaintiffs to prove the existence of the plots and also the water chambers and they can very well do so by producing necessary documentary evidence on record; like the 'N.A. Permission' obtained for making of the plots and they can also prove separate water chambers for such plots by producing 'Water Bills', or, the documents showing that such separate water chambers were obtained. They cannot seek appointment of 'Court Commissioner' for the purpose of proving their case.
14. Here in the instant case, it cannot be said that for collection Page 15 of 16 Downloaded on : Wed Jan 12 00:49:16 IST 2022 C/SCA/712/2016 JUDGMENT DATED: 15/11/2021 of evidence, plaintiff has filed an application Exh.41. It can be said that to clear the controversy between the parties in respect of the suit land, application Exh.41 was submitted by the plaintiff as previously decree was passed in favour of the plaintiff. Under the circumstances, the judgments relied upon by the leaned advocate appearing for the respondent No.3 will not be applied to the facts of the present case.
15. Under the circumstances, present petition is hereby allowed. The order dated 22.04.2015 passed below Exh.41 by learned 7 th Additional Civil Judge, Palanpur in Regular Civil Suit No.26 of 2011 shall be quashed and set aside and application Exh.41 shall be allowed. Rule is made absolute to the aforesaid extent.
16. It would be open for the parties to object the panchnama before the trial court by raising their objections permissible under the law.
(B.N. KARIA, J) SUYASH Page 16 of 16 Downloaded on : Wed Jan 12 00:49:16 IST 2022