Bombay High Court
Shri. Kawadu S/O Marotrao Injmulwar vs Shri. Vijay Hiraswami on 11 February, 2019
Author: Manish Pitale
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.3174 of 2018
(Kawadu Injmulwar V Vijay Hiraswami)
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Office Notes, Office Memoranda of Court's or Judges Order.
Coram, appearances, Court's Orders
or directions and Registrar's orders.
Mr. A.K. Bangadkar, Counsel for petitioner.
Coram : Manish Pitale, J.
Dated : 11th February, 2019.
By this Writ Petition, the petitioner has challenged order dated
13-04-2018, passed by the Court of 7th Joint Civil Judge, Senior Division,
Nagpur (trial Court), whereby application (Exhibit-34), for appointment of
Court Commissioner filed on behalf of the petitioner under Order XXVI
Rule 9 of the Code of Civil Procedure, 1908 (CPC), has been rejected.
The petitioner is the original plaintiff who has filed suit for possession,
declaration and permanent and mandatory injunction against the
respondent (original defendant), claiming that the petitioner is the owner
and possessor of Plot Nos. 128 and 129 of mouza Beltarodi Gram
Panchayat-Besa, District Nagpur. It is claimed by the petitioner that the
respondent has illegally started construction upon the said plots belonging
to the petitioner and that therefore, urgent orders were prayed for from the
trial Court for grant of temporary injunction. In the written statement filed
on behalf of the respondent, it was submitted that the said respondent was
the owner of Plot Nos. 66 and 67 and that the said plots were located far
away from the said Plot Nos.128 and 129. It was also claimed that the
respondent had started construction on Plot Nos. 66 and 67 and that the
claims made on behalf of the petitioner were baseless. By an order dated
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20-02-2017, the trial Court allowed the application for grant of temporary
injunction filed on behalf of the petitioner and thereby, restrained the
respondent from carrying out construction over Plot Nos.128 and 129 and
also restrained the respondent from creating third party interests in the
said plots.
2. Thereafter, on 26-10-2017, the petitioner filed an application
under Order XXVI Rule 9 of the CPC, praying for appointment of Court
Commissioner i.e. the Revenue Authority for measuring Plot Nos.128 and
129 as also Plot Nos. 66 and 67. This application was opposed on behalf of
the respondent. By the impugned order, the trial Court rejected the said
application. The reasoning adopted by the trial Court while rejecting the
said application, is found in paragraph 4, the relevant portion of which
reads as follows :-
"4] ...................In the present application also it is
pleaded that the plots of defendant i.e. nos. 66 and
67 are far away from the suit plot bearing nos. 128
and 129. It is pertinent to note that, from the
boundaries of the suit plot it is clear that plot nos. 66
and 67 are not located near the suit plots. In other
words, defendant's plot nos. 66 and 67 are not the
adjoining plots to the suit property. It can also be
said that defendant is not the adjoining plot holder
or neighbour of the plaintiff. As aforesaid, even the
plaintiff has pleaded in this application that the plots
of defendant are away from the suit plot. If the plots
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of defendant are far way from the suit plot, the
question of boundary dispute will not arise. Even in
the prayer clause of this application it is only prayed
that measurement of the plots of plaintiff and
defendant be made. This cannot be done in as much
as and as aforesaid, the plaintiff and defendant are
not adjoining land holder. As such, there cannot be
any boundary dispute in between them. Therefore,
no purpose would be resolved by measurement as is
prayed in this application. Even the reliance placed
will not help the cause of plaintiff as it relates to
boundary dispute. For the aforesaid reasons, the
application fails and following order is passed.
ORDER
1] Application (Exhibit no.34) is rejected."
3. Although notice was issued in this petition and interim order was granted on 12-06-2018, despite service, none has appeared on behalf of the respondent. It was contended by the learned Counsel appearing for the petitioner that the trial Court erred in rejecting the application (Exhibit-34), because it was necessary for a Court Commissioner to visit the plot and to carry out the measurement for bringing facts before the trial Court, to ascertain the exact identity of the plots and thereby assist the Court in deciding the dispute between the parties. It was also contended that the respondent was served on the said Plot No.128 with the notice issued by this Court. On this basis, it was submitted that order passed by ::: Uploaded on - 12/02/2019 ::: Downloaded on - 13/02/2019 00:35:52 ::: 4 wp3174.18.odt the trial Court was unsustainable and that appointment of Court Commissioner was required in the facts and circumstances of the present case.
4. The trial Court has noted the fact that Plot Nos.128 and 129 on the one hand and Plot Nos. 66 and 67 on the other hand, are not located adjacent to each other. The learned Counsel for the petitioner does not raise any dispute regarding the said fact recorded by the trial Court. In fact, it is also the contention of the petitioner that Plot Nos.128 and 129, are far away as compared to Plot Nos. 66 and 67 of which the respondent claims to be the owner. Therefore, there is no question of either any boundary dispute between the parties or that the respondent in the present case claims that Plot Nos. 66 and 67 are actually Plot Nos.128 and 129 and that there is some confusion as regards numbering of the plots. In this situation, it is difficult to understand as to what is the nature of dispute being raised by the petitioner for the trial Court to exercise power under Order XXVI Rule 9 of the CPC, for appointment of Court Commissioner. The said provision states that any suit in which the Court deems it fit that a local investigation would be necessary for the purpose of elucidating any matter in dispute, the Court may appoint a Court Commissioner. In the present case, the petitioner is insisting upon appointment of a Court Commissioner for measurement of the said plots in question. Mere measurement of the said plots would still not be relevant in the dispute being raised by the petitioner, because in the present case the petitioner has raised dispute regarding the illegal manner in which the respondent has started construction on Plot No.128 and part of Plot No.129. In fact, it is also claimed by the petitioner that the ::: Uploaded on - 12/02/2019 ::: Downloaded on - 13/02/2019 00:35:52 ::: 5 wp3174.18.odt respondent has actually shifted into Plot No.128. Even if that be so, it would be a case of encroachment and illegal construction by the respondent in Plot No.128 and part of Plot No.129. This is precisely the reason why the trial Court by order dated 20-02-2017, had granted temporary injunction in favour of the petitioner. The measurement of the plots in question would not in any manner assist the trial Court in resolving the dispute with which the petitioner has come before the trial Court. In these circumstances, it cannot be said that the trial Court committed any error in refusing the exercise of power under Order XXVI Rule 9 of the CPC.
5. The learned Counsel for the petitioner has placed reliance on the judgment of Madhya Pradesh High Court in the case of Jaswant vs Deen Dayal, reported at 2011 (4) Civil LJ 78, contending that in similar circumstances the Court had permitted appointment of Court Commissioner. A perusal of the said judgment shows that the moot question that arose in the said case was as to whether the plaintiff or the defendant was the owner of the suit property. Since both the parties were claiming ownership to the same property, which was the suit property in the said case it becomes clear that the facts of the present case are materially different from that of the case on which the learned Counsel for the petitioner has relied. Therefore, the said judgment passed by the Madhya Pradesh High Court, would be of no assistance to the petitioner.
6. In the light of the above, it is found that the present Writ Petition is without any merit and accordingly, it is dismissed.
JUDGE Deshmukh ::: Uploaded on - 12/02/2019 ::: Downloaded on - 13/02/2019 00:35:52 :::