Gh.Hassan Ganai vs Sudershah Katiyal & Ors.

Short point for consideration is as to whether the trial court was competent to issue Commission in terms of Order 39, Rule 7 of CPC so as to

ask for demarcation and spot inspection of land of the plaintiff and to submit detailed report regarding actual position on spot as per revenue

records.

Appearing counsel for the petitioner would contend that for demarcation of land, there is proper machinery provided under Land Revenue Act.

Revenue Agency has power to demarcate and it is for the parties to approach the concerned authority. Trial Court was not required to ask the

Revenue Authorities to do what the plaintiff should have prayed for before the revenue authorities, therefore, application is barred by Sections 93,

94, 95, 98 and 139 of the Land Revenue Act as well as Rule 17 of the Land Revenue Rules. The Sections 93,94,95,98 of Land Revenue Act

provide for powers of the Revenue Officers visavis demarcation of land.

Section 139 of the Land Revenue Act excludes jurisdiction of the civil court in the matters which are within the jurisdiction of Revenue Officers

subject to exception. Sub section (2) of said Section clearly shows as to what are the matters where civil court has no jurisdiction. It nowhere

prescribes bar for identification of the land on spot. Rule 17 of Land Revenue Rules provides for boundaries and Survey marks. Thus, submission

projected by the learned counsel is totally misplaced because learned trial court has not asked for anything contrary to the said provisions.

By no stretch of imagination order impugned can be termed an order for collection of evidence. Appearing counsel for the petitioner first placed

reliance on the judgment titled Ram Singh and others vs. Gram Panchayat, Mehal Kalan and others, reported in AIR 1986 SC 2197. The said

judgment is of no help to him as in the reported judgment question as to whether suit land was a part of Shamlatdeh was a question to be decided

by the Collector only under Section 11 of the Punjab Village Common Lands Act.

Next relied on the judgment titled Chandrika Singh and others vs. Raja Vishwanath Pratap Singh and another reported in (1992) 3 SCC 90. In

the reported judgment question which arose in the suit was whether land comprising building and open land is agriculture land and falls within the

definition of 'land' under Section 3 (4) of the U.P Zamindari Abolition and Land Reforms Act 1950. Matter was covered by Section 331A of the

said Act so was to be decided by the Assistant Collector and not Civil Court. It is in this context, jurisdiction of Civil Court was ousted.

Next reliance was placed on the judgment titled Union of India and another vs. M/s Kripal Industries, reported in AIR 1998, Rajasthan 224

where possession of the plaintiff over the suit property was denied by the defendant. In that backdrop, court has opined that under Order 26 Rule

9 CPC Commission could not be issued for making enquiry about the fact of the possession. This judgment, by no means, is applicable as in the

instant case, Commission has been issued under Order 39 Rule 7 CPC and the position is also different i.e. claim of the respondent (plaintiff) is not

denied but only question of identity of the land is involved.

There is no denial of the fact that grant of injunction is subject to satisfaction on three cardinal principles based on the available material but case

in hand has different features prima facie position is not denied but identity of the land is in question, the identity thereof may clinch the issue.

Every case has to be adjudged in the background of the particular facts and pleadings. In the case in hand, plaintiff has instituted the suit claiming

therein to be the owners in possession of the land measuring 08 kanals and 03 marlas under Survey No. 54 situated at Village Gungbugh, Barzalla.

On the other hand, defendant no.1 in his written statement has alleged that he is in possession of land measuring 07 kanals and 7 marlas under

Survey No. 990/54 min situated at Gungbugh, Barzalla. The learned trial court noticing that the Survey No. 54 comprises of 500 kanals of land

and also noticed that both plaintiff and defendant no.1 figured in the revenue records, therefore, matter can be set at rest by asking for spot

inspection.

The learned trial court before deciding the application for adinterim relief faced with the respective stand of the parties has invoked powers

under Order 39 Rule 7 CPC, though application had been styled to be under Section 151 of CPC. Order 39 Rule 7 CPC reads as under:

Detention, preservation, inspection, etc, of subject matter of suit

(1) The court may, on the application of any party to a suit, and on such terms as it thinks fit

(a) make an order for the detention, preservation or inspection of any property which is the subject matter of such suit, or as to which any question

may arise therein;

(b) for all or any of the purposes aforesaid authorize any person to enter upon or into any land or building in the possession of any other party to

such suit; and

(c) for all or any of the purposes aforesaid authorize any samples to be taken, or any observation to be made or experiment to be tried, which may

seem necessary or expedient for the purpose of obtaining full information or evidence.

(2) The provisions as to execution of process shall apply, mutatis mutandis to persons authorized to enter under this rule"".

The plain reading reveals that court is clothed with the power to direct inspection of the suit property. In view of the questions as have arisen,

the exercise of power is not barred in terms of the provisions of Land Revenue Act quoted above. The word inspection as occur in Order 39 Rule

7 (i) (a) CPC read with clause (b) can not be construed in a narrow sense so as to render it illogical. Power as exercised by the trial court, as such,

is well covered. Dispute regarding identity of the land, in the backdrop of the respective pleadings will get clarified by the spot inspection and

controversy will get narrowed down. This power exercised under Order 39 Rule 7 of CPC by the learned trial court does not suffer from any

material irregularity or improper exercise of jurisdiction. The order impugned in fact has the object of securing the interests of justice.

For the stated reasons neither jurisdictional error nor material irregularity is forthcoming, therefore, order under challenge does not warrant any

interference so is maintained. Revision Petition, as such, dismissed alongwith connected CMPs. Copy of the order alongwith subordinate record

be sent to court below forthwith. Parties to appear before the trial court on 04.04.2009.