Devendra Khatri & Others vs Shiv Kumar & Others

Manoj K. Tiwari, J

Petitioners have challenged the order dated 15.01.2019 passed by Civil Judge (J.D.), Haridwar in Miscellaneous Case No. 26 of 2018 and also the judgment & order dated 16.04.2019 passed by learned In-charge District Judge, Haridwar in Civil Revision No. 189 of 2019.

Respondent Nos. 1 & 2 along with three other persons filed an original suit in the year 1972 against Sardar Dalip Singh asserting that they are owners in possession of the disputed land shown at the foot of the plaint comprised in Khasra No. 2772 of Village Ahmadpur Mahalger Daiyan. The relief sought in the suit was for perpetual injunction and in the alternative for possession. The said suit was registered as Original Suit No. 12 of 1972. Learned Munsif, Roorkee decreed the suit vide judgment dated 15.12.1980. Sardar Dalip Singh (defendant) challenged the judgment and decree passed by learned trial court by filing Civil Appeal No. 6 of 1981, which was allowed by learned Civil Judge, Roorkee vide judgment dated 06.10.1983 and the judgment & decree passed by learned trial court was set aside. Against the said judgment plaintiffs preferred Second Appeal No. 1486 of 2001 (Old No. 3206/1983), which was allowed by co-ordinate Bench of this Court vide judgment dated 17.07.2007. Operative portion of the said judgment is extracted below:-

"12. Therefore, the second appeal deserves to be allowed. The second appeal is allowed. The suit is decreed, as prayed by the plaintiffs for dispossession of the defendant and injunction. However, in the interest of justice defendant Daleep Singh is allowed to remove his possession within a period of two months, failing which the plaintiffs will be at liberty to get the decree executed through the court. No order as to costs."

Since the defendant in the suit had contended that the land in suit is not identifiable and the first appeal, filed by him, was allowed on this ground, therefore, the co-ordinate Bench of this Court dealt with this aspect in para 8 & 9 of the judgment dated 17.07.2007 passed in SA No. 1486 of 2001, which are extracted below:-

"8. Learned counsel for the plaintiffs/appellants submitted before this Court that lower appellate court has set aside the decree passed by the trial court only on the ground that land is not identifiable and the plaintiffs failed to get located by getting surveyed the land in question. But perusal of the plaint map and the description of the disputed land, shown at the foot of the plaint, shows that the land in respect of which relief is claimed by the plaintiffs, cannot be said to be not identifiable, as it is adjoining to the main Jwalapur road and boundaries are shown of the disputed land in suit apart from its Khasra number and other particulars. As such, the reason mentioned by the lower appellate court for setting aide the decree, passed by the trial court, on the ground that the same is not identifiable is against the evidence on record.

As far as question of location/survey of disputed land of Plot No. 2772 is concerned, in the opinion of this Court, it arises only when party pleads that the disputed land lies in one Plot while the other disputes its existence on said Plot and claims to be part of some other Plot. It is not the case here. From the contents of the written statement, as mentioned above, it is evidently clear that the defendant has nowhere pleaded that disputed land is not part of Plot No. 2772. What is alleged by the defendant is that there are other co-owners of Plot No. 2772 and as such the plaintiffs cannot seek the relief claimed by them. But that plea is available to the co-owners, if relief for injunction or exclusive possession is sought against them. The defendant though has claimed in his written statement that he is also owner of a part of land of 2772. In these circumstances, this Court is of the view that the lower appellate court erred in law in setting aside the decree on the ground that the disputed plot was not located or surveyed by the plaintiffs."

Sardar Dalip Singh (defendant in the suit) filed a review application seeking review of the judgment dated 17.07.2007, which was rejected by this Court vide order dated 13.08.2007. The decree holders put the decree to execution by filing Execution Case No. 10 of 2010. The judgment debtor (Sardar Dalip Singh) filed objection under Section 47 of C.P.C., which was rejected by the executing court. Thereafter, he filed revision challenging the executing court's order, which too was dismissed by learned 2nd Additional District Judge, Haridwar.

It transpires that the judgment debtor transferred the land in suit to certain individuals during pendency of the suit and such transferees from judgment debtor, were creating obstruction in execution of the decree, therefore, the decree holders filed an application under Order 21 Rule 97 of C.P.C. read with Section 151 of C.P.C., which was registered as Miscellaneous Case No. 26 of 2018. Petitioners, who had stepped into the shoes of judgment debtor, filed two applications under Order 26 Rule 9 of C.P.C. for appointment of a survey commissioner. These applications were numbered as Paper No. 32 C2 and Paper No. 61 C2. Respondent No. 1 filed his objection, which is numbered as Paper No. 51 C2. Learned trial court rejected both the applications vide order dated 15.01.2019 by holding that the land in suit has been surveyed many times earlier and the applications made by the petitioners are aimed at causing delay in disposal of execution case. Learned trial court relied upon the judgment rendered by Hon'ble Allahabad High Court in the case of Zeenat Vs District Judge, Rae Bareli & others reported in 2012 (115) RD 114, where it has been held that it is not mandatory for the court to allow every application, which is moved for local inspection and further that while allowing or rejecting the same, court has to take into consideration the motive and reasons behind moving the application coupled with other factor e.g. for what purpose it has been moved. Learned trial court also placed reliance upon another judgment rendered by Hon'ble Allahabad High Court in the case of Smt. Meena Begum Vs Additional District Judge, Court no. 12 & others reported in 2018 (127) ALR 358, where it has been held that commission cannot be issued for collecting evidence and it can be issued in cases where on evidence led by the parties, court is not able to arrive at a just conclusion either way or where the court feels that there is some ambiguity in the evidence which can only be clarified by making local inspection.

Petitioners challenged the order passed by learned trial court by filing Civil Revision, which too was dismissed by the revisional court by judgment dated 16.04.2019.

In the present case, property is identifiable as held by co-ordinate Bench of this Court in Second Appeal No. 1486 of 2001. Thus, the sole purpose of the petitioners appears to collect evidence through survey commission, which is impermissible.

The appointment of Commissioner is discretion to be exercised by the trial Court in accordance with the circumstances of each case. Only when the trial Court finds a local investigation necessary for the purpose of deciding the matter in dispute; it may exercise the discretion for appointment of a Court Commissioner. Thus, when the Court does not find it necessary, there is nothing which mandates the Court to appoint Court Commissioner. However, decision on a material issue can never be left to the Commissioner, which must be decided by the Court, as judicial functions of a judge cannot be delegated to the Commissioner, which is impermissible.

Hon'ble Karanataka High Court in the case of Puttapa v. Ramappa reported in AIR 1996 Kant. 257 has held that question of possession over the property is a matter to be decided by the Court on the basis of the evidence to be adduced by the parties and this function cannot be delegated to the Commissioner who cannot find out as to who is in possession of the property.

I have gone through the orders passed by learned trial Court as well as learned revisional Court. Learned trial Court has given cogent reasons for refusing to exercise the discretion available under Order 26 Rule 9 CPC. Therefore learned revisional Court rightly dismissed the challenge thrown by the petitioner to the trial Court's order.

This Court finds no reason to interfere with the order passed by learned Courts below while exercising supervisory power under Article 227 of the Constitution.

Accordingly, the writ petition fails and is dismissed. No order as to costs.