1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Ramu Vs. Gangaram & Ors. (S. B. Civil Writ Petition No.10815/2010) S. B. Civil Writ Petition under Articles 226 & 227 of the Constitution of India. Date of Judgment: August 17, 2010 PRESENT HON'BLE MR. JUSTICE R.S. CHAUHAN Mr.Sorabh Purohit, for the petitioner. BY THE COURT: Aggrieved by the order dated 16.03.2010, passed by the Civil Judge (Junior Division), Chomu, whereby the learned Civil Judge has appointed a Commissioner, and also aggrieved by the order dated 16.07.2010, passed by the Civil Judge (Junior Division), Chomu, whereby the learned Civil Judge has rejected the objections raised by the petitioner against the Commissioner's report, the petitioner has approached this Court. The brief facts of the case are that the petitioner and the respondent No.1, Gangaram, are having agricultural land adjacent to each other in the village Samod, Tehsil Chomu. The land of the petitioner is situated in Khasra No.1758. The said 2 land lies between Khasra No.1759 & 1771 which belongs to the respondent No.1. The respondent No.1 is having an independent path to his land situated in Khasra No.1759 through Khasra No.1710. In order to get a shorter route to his land in Khasra No.1759, in 2002 the respondent No.1 moved an application under Section 131 read with Section 136 of Land Revenue Act before the Sub-Divisional Officer, Chomu. However, vide order dated 01.07.2003, the learned Sub-Divisional Officer dismissed the said application. Aggrieved by the order dated 01.07.2003, the respondent No.1 filed an appeal before the Divisional Commissioner, Jaipur. However, vide order dated 23.12.2009, the learned Divisional Commissioner dismissed the said appeal. Against the order dated 23.12.2009, the respondent No.1 filed a revision petition before the Board of Revenue. The said petition was also dismissed by the Board vide order dated 17.05.2010. When the application under Section 131 read with Section 136 of Land Revenue Act was dismissed in 2003, the respondent No.1 file a suit before the Civil Judge for permanent injunction and easementry rights. The petitioner filed reply to the said suit. On 15.03.2008, in order to create evidence an application under Order 6 Rule 17 for amendment of the T.I. was filed by the 3 respondent No.1. In September 2008, the said application was allowed by the trial court. Thereafter, in 2009, an application for appointment of Commission under Order 26 Rule 9 CPC was filed by the respondent No.1. On 16.03.2010, the learned trial court allowed the application and appointed the Commissioner. On 23.03.2010, the Commissioner visited the site and gave his report on 25.03.2010. Against the Commissioner's report the petitioner filed his objections before the trial court. However, Vide order dated 16.07.2010, the learned trial court dismissed the said objections. Hence, this petition before this Court. With regard to the order dated 16.03.2010, Mr. Sorabh Purohit, the learned counsel for the petitioner, has contended that the Commissioner was appointed in violation of the law and behind the back of the petitioner. Thus, the appointment is absolutely illegal. Moreover, the Commissioner has inspected the land in dispute without informing the petitioner. Thus, in collusion with the plaintiff-respondent, he has submitted an incorrect report. Moreover, with regard to the order dated 16.07.2010, the learned counsel has contended that the learned Civil Judge has passed the said order without assigning any cogent reasons for rejecting his objections. 4 Heard the learned counsel for the petitioner and perused the impugned orders. As fas as the order dated 16.03.2010 is concerned, the petition is hit by delay and leaches. In case the petitioner had any grievance about the appointment of the Commissioner, he should have rushed immediately to this Court. Although the petitioner claims that the said order was passed behind his back, but according to the Commissioner, he had served a notice upon the petitioner's counsel on 23.03.2010. Thus, from 23.03.2010, the petitioner did have the knowledge that a Commissioner has been appointed by the Court. Yet from 23.03.2010 till 29.07.2010, the petitioner kept a studied silence over the entire appointment of the Commissioner. It is only after the report of the Commissioner has gone against his interest, that the petitioner had suddenly woken up to challenge the Commissioner's appointment. Thus, obviously the petition is hit by delay and leaches. According to the petitioner, the Commissioner's report was drawn up behind his back. However as noticed by the learned Civil Judge, the Commissioner, in his report dated 25.03.2010, has clearly stated that he had served a notice about the inspection on the petitioner's 5 counsel. However, the counsel had refused to accept the said notice. Once the notice was served upon the petitioner's counsel, the petitioner is pre-empted from claiming that the inspection was carried out behind his back. Therefore, the said contention raised by the learned counsel for the petitioner is untenable. The learned Civil Judge has given cogent reasons for rejecting the petitioner's objections : firstly, the learned Judge has noticed the fact, as mentioned above, that the petitioner's counsel was duly informed. Yet, the learned counsel refused to accept the notice. In such circumstances, the petitioner could not claim that the inspection was carried out behind his back. Secondly, there is no evidence to show that the Commissioner had entered into a conspiracy with the plaintiff-respondent to give a false report. Thirdly, the Commissioner's report is merely a corroborative piece of evidence and is not a substantial one. Since cogent reasons have been assigned by the learned Civil Judge, this Court does not find any illegality or perversity in the impugned order. Lastly, it is pertinent to keep in mind that a court appoints a person as a Commissioner in whom the court has implicit faith. The 6 relationship between the Commissioner and the Court is that of a trust. The Commissioner acts as eyes and ears of the Court. Thus, generally it is unthinkable that the Commissioner would breach the trust of the court. Hence, ordinarily the Commissioner's report should be accepted as being truthful, until and unless there is an overwhelming evidence to prove that the Commissioner has breached the trust of the court and has given a false report. Of course, the falsity of the report can be demonstrated only during the course of trial. Therefore, at the initial stage generally the Commissioner's report should not be set aside lightly by a court. In this view of the matter, this petition is devoid of any merit. It is, hereby, dismissed. (R.S. CHAUHAN) J. Manoj solanki