Smt. Kamlesh Jain vs Smt. Kusum Bai

U.C. Maheshwari, J.—He is heard on the question of admission.

The petitioner/plaintiff has filed this petition under Article 227 of the Constitution of India being aggrieved by the order dated 23.7.13 (Annex. P/6) passed by the III Civil Judge-II, Mandla passed in C.S. No. 44-A/12 whereby his application filed under order 26 rule 9 of the CPC for appointment of Commissioner and calling the demarcation report of the disputed land, has been dismissed till the extent of appointment of Commissioner and calling such report with observation that in the light of the demarcation report carried out by the revenue officer at the instance of the petitioner and filed with the suit, the petitioner shall be at liberty to call and examine the concerning revenue inspector who carried out and prepared such report.

Shri Ashok Lalwani, learned appearing counsel of the petitioner after taking me through the averments of the petition and the papers placed on the record as well as the impugned order by referring the case law of this court in the matter of Jaswant Yadav Vs. Deen Dayal, argued that where there is dispute relating to the boundaries of the property and as alleged some one is in possession as encroacher then the court is duty bound to issue the Commissioner and calling the demarcation report even in the lack of any application of the party. In continuation he said that the impugned suit has been filed by the petitioner for possession of the land on which the respondent/defendant has encroached by removing his structure and possession. He fairly submitted that the demarcation report which was carried out by the revenue officer at the instance of the present petitioner has been placed on the record along with the plaint. He further said that in any case, in the available circumstances besides the aforesaid report of the petitioner court should call the fresh report by appointing some expert of the revenue department in this regard. He pointed but that the aforesaid report filed by the petitioner has been denied by the respondent/defendant in her written statement. With these submissions, he prayed to set aside the impugned order till the extent of refusing the prayer for appointment of Commissioner and allow his application in that regard also by admitting and allowing this petition.

Having heard the counsel at length, keeping in view his arguments, I have carefully gone through the papers placed on the record along with the impugned order. It is undisputed fact on record that at the instance of the petitioner, the demarcation of the disputed land was carried out by the revenue officer and after obtaining the copy of such report the same has been placed by the petitioner before the trial court although such report has been denied by the respondent/defendant in his written statement and its validity has also been challenged. The admissibility or sustainability of this report shall be considered at the appropriate stage by the trial court, therefore, no finding of this court in this regard is required at this stage. It is apparent from the impugned order that while passing the same the aforesaid report submitted by the petitioner was also taken into consideration and, in such premises, it was observed that in order to prove such report on which case of the petitioner is based, the petitioner may call and examine the concerning revenue inspector who carried out and prepared such report. It is further observed in the light of such report, no appointment of the fresh Commissioner for calling the report is required. It is also apparent from the impugned order that while considering the impugned application, the petitioner has been extended liberty to examine the aforesaid witness in the matter. Even otherwise the petitioner is at liberty to examine such witness. So, in such available factual matrix of the case all probable aspects have been taken into consideration by the trial court while passing the impugned order and, in such premises it appears to be passed under the vested discretionary jurisdiction of such court and it is settled proposition of the law that whenever the subordinate court has passed any order under the vested discretionary jurisdiction then the same could not be interfered in writ petition filed under Article 227 of the Constitution of India. Such principle was laid down by the Apex Court in the matter of The Managing Director (MIG) Hindustan Aeronautics Ltd. and Another, Balanagar Vs. Ajit Prasad Tarway,

Apart the aforesaid, it is also settled proposition of the law that every concerning party of the litigation is bound to prove his case on his own legs. He has no right to use the procedure of the court as an agency to collect the evidence in support of such party. So, in such premises also, the impugned order does not require any interference.

So far the case law in the matter of Jaswant (supra) cited on behalf of the petitioner is concerned, it is suffice to say that in such case no demarcation report was filed by the concerning plaintiff on record and, therefore, it was observed that in the matter relating to the dispute of the boundaries, the court is duty bound to call the demarcation report to decide the matter. So, in view of availability of demarcation report of the revenue inspector filed by the petitioner in the case at hand, the principle laid down in the cited case is not helping to the petitioner. So far the principle laid down in this case, this court did not have any dispute.

Apart the aforesaid, at this stage, I deem fit to observe that after recording the evidence of both the parties, if any ambiguity is pointed out by either of the parties in such evidence and in such premises any application under order 26 rule 9 of the CPC for appointment of the Commissioner to call the Commissioner report to clarify such ambiguity is filed then at that stage the trial court shall be at liberty to consider such application in view of the evidence recorded and not prior to that. So, in such premises, also the impugned order does not require any interference. In view of aforesaid discussion, I have not found any perversity, illegality, irregularity, infirmity or anything contrary against the propriety of the law in the order impugned. Consequently, this petition being devoid of any merits deserves to be and is hereby dismissed.