Rajasthan High Court - Jaipur
Ajeet Kumar Buchasiya S/O Jagannath ... vs Smt. Gyarsi Devi W/O Jitendra Kumar ... on 21 January, 2022
Author: Sameer Jain
Bench: Sameer Jain
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 14130/2019
Ajeet Kumar Buchasiya S/o Jagannath Buchasiya, Aged About 72
Years, R/o Ward No. 10, Bissau, Tehsil Malsisar, District
Jhunjhunu (Raj.)
----Petitioner
Versus
Smt. Gyarsi Devi W/o Jitendra Kumar Sharma, R/o Ward No. 10,
Bisau, Tehsil Malsisar, District Jhunjhunu.
----Respondent
For Petitioner(s) : Mr. Intjar Ali (through VC) For Respondent(s) : Mr. Arun Singh Shekhawat (through VC) HON'BLE MR. JUSTICE SAMEER JAIN Judgment / Order Reserved on : 10/01/2022 Pronounced on : 21/01/2022
1. Present petition has been filed by the plaintiff-petitioner under Article 227 of the Constitution of India against order dated 06.07.2019 passed by learned Civil Judge, Jhunjhunu in Case T.I. No.47/2019 whereby the application filed by the plaintiff-petitioner under Order 39 Rule 7 read with Section 151 CPC for appointment of Commissioner has been dismissed.
2. Brief facts of the case are that on 21.06.2019 one civil suit for mandatory and permanent injunction along with temporary injunction application was filed by the plaintiff-petitioner against the defendant-respondent before the learned trial court stating therein that an ancestral plot/Nohra measuring 287.22 square yards of ownership and possession of the plaintiff-petitioner as (Downloaded on 27/01/2022 at 08:58:26 PM) (2 of 5) [CW-14130/2019] well as his brother, situated in Ward No.10 of Bissau, was registered in municipal record as Plot No.10/108. In the western side of the said plot in question of the plaintiff-petitioner, there is a way of 91/2 feet width passing between Plots No.10/107 and 10/110 upon which the defendant-respondent started construction and it was prayed for removal of the construction made on the way of the plaintiff-petitioner.
3. On 04.07.2019, reply to the T.I. application was filed by the defendant-respondent and application under Order 39 Rule 7 read with Section 151 CPC was also filed by the plaintiff-petitioner for appointment of Commissioner for inspection of the suit property as the defendant-respondent was trying to stop the way of the plaintiff-petitioner by making construction on the way and the petitioner wanted to bring on record the actual position of the site and to preserve the suit property.
4. In reply to the said application under Order 39 Rule 7 read with Section 151 CPC, the defendant-respondent denied the submissions made by the plaintiff-petitioner in the application and specifically stated that the defendant-respondent is in possession.
5. On 06.07.2019, the learned trial Court after hearing the parties, dismissed the said application and hence, the present writ petition has been filed in which Coordinate Bench of this Court vide order dated 30.10.2019 granted interim protection to maintain the status quo with regard to property in dispute.
6. The respective counsels for both the parties reiterated the contentions raised before the learned trial Court and cited the judgments at bar.
7. The preliminary contention of the petitioners' counsel was that the learned trial Court has wrongly arrived at a finding that (Downloaded on 27/01/2022 at 08:58:26 PM) (3 of 5) [CW-14130/2019] no document with regard to the title and possession was produced by the petitioner whereas the fact was that the record of Municipal Board, Bissau clearly established this fact that the plot in question Bearing No.10/108 is in ownership, possession and occupation of the plaintiff. Therefore, the finding was perverse. The second submission of petitioners' counsel was that the petitioner has not filed independent application under Order 39 Rule 7 CPC for creation of evidence but only to bring on record the latest position of the suit property for justifying his T.I. Application. It is settled position of law as per petitioners' counsel that once the fact that the plot Exhibited in map annexed to the plaint was existing between Plots No.10/110 and 10/107 was not denied in reply to the T.I. Application, then in that case, to present alteration in the nature of suit property, appointment of commissioner was necessary.
8. Per contra, learned counsel for the respondent submitted that the plot in question marked as A,B,C,D in the map annexed with the plaint does not belong to the plaintiff while the defendant is in possession of the same for last 35 years, the plaintiff has not produced any title document with regard to plot marked as A,B,C,D and entries in municipal record are not a conclusive proof of ownership and therefore, the appointment of commissioner on the grounds that the petitioner has failed to justify that the property in question is ancestral and the by way of filing the application, the petitioner is trying to use the learned trial court as a tool for creation of evidence by seeking appointment of commissioner and the learned trial Court was right in rejecting the application.
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9. In support of his submissions, learned counsel for the respondent has also relied upon the judgments of this Court in Capricorn Life Style Pvt. Ltd. Vs. Sunil Kumar & Anr. reported in 2015(1) DNJ (Raj.) 184, decided on 05.12.2014 as well as in Lalita Solanki Vs. Shah Mitesh (S.B. Civil Writ Petition No.17775/2021), decided on 20.12.2021 and Smt. Bibi Begam Vs. Udai Lal (S.B. Civil Writ Petition No.15902/2021), decided on 14.12.2021.
10. On perusal of above contentions submitted by respective counsels and scanning record of the writ petition, this Court is of the view that supervisory jurisdiction under Article 227 is a limited jurisdiction which is to be invoked only when there is a manifest error apparent on the face of the record or violation of principles of natural justice in passing the order impugned.
11. On perusal of the order impugned, this Court feels that justified reasons are specified while passing the impugned order and for rejecting the claim of appointment of commissioner under Order 39 Rule 7 CPC. The learned trial Court has categorically held that the Court cannot be used as a tool for collecting evidences, especially when, the petitioner has failed to bring on record any title document as to how the property in question was ancestral. The petitioner wants that the deficiency of their suit can be fulfilled by appointment of commissioner and the disputed questions of fact can be re-opened.
12. On perusal of the judgments cited at bar and following the guided principles given by Hon'ble Supreme Court in Shalini Shyam Shetty & Ors. Vs. Rajendra Shankar Patil reported in 2010(8) SCC 329, which is relied upon in the case of Lalita (Downloaded on 27/01/2022 at 08:58:26 PM) (5 of 5) [CW-14130/2019] Solanki (supra), this Court is of the view that no interference in the present writ petition is called for.
13. As a result, the writ petition is dismissed. Interim order stands vacated.
14. All pending applications also stand disposed of.
(SAMEER JAIN),J Raghu/ (Downloaded on 27/01/2022 at 08:58:26 PM) Powered by TCPDF (www.tcpdf.org)