SCA/543/2008 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 543 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ======================================================== RAVABHAI BHURABHAI RABARI - Petitioner(s) Versus HANSRAJ PASU SINCE DECD. THRO' BABA @ NARENDRA HANSRAJ - Respondent(s) ========================================================= Appearance : MR ASHISH M DAGLI for Petitioner(s) : 1, MR NV ANJARIA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 06/08/2008 ORAL JUDGMENT 1. Rule. Mr. N.V. Anjaria wavies service of rule on behalf of the respondent. With the consent of learned advocate for the the parties, the matter is taken up for final hearing. SCA/543/2008 2/9 JUDGMENT 2. By way of this petition under Article 227 of the Constitution of India, the petitioner -original defendant has prayed for an appropriate writ, direction and / or order quashing and setting aside the judgment and order dated 10.9.2007 passed by the learned Civil Judge, Junior Division, Anjar below Exh. 170 passed in Regular Civil Suit No. 62 of 2001, by which the learned trial Court has dismissed the said application submitted by the petitioner for directing the DILR to survey and prepare the panchnama and submit a report. 3. The respondent herein original plaintiff has filed Regular Civil Suit No. 62 of 2001 in the Court of learned Civil Judge, Junior Division Anjar-Kutch seeking declaration and permanent injunction. The dispute is with respect to the boundary and the measurement of the plot in question. As per the plaintiff, the area of the plot is about 302 Sq. Mtrs. and the said plot is purchased by the father of the plaintiff in public auction in 1985. It also seems to be a case of the SCA/543/2008 3/9 JUDGMENT plaintiff that he is the legal heir of the deceased and is entitled to enjoy the ownership and possession of the plot in question and in the year 2001 on the northern side of the plot, the original defendant intended to make some construction, therefore, the aforesaid suit came to be filed. Thereafter, the Court Commissioner was appointed to make the Panchnama, however, objection has been raised with respect to the said panchnama and it was the contention of the petitioner-defendant that under the influence of the plaintiff or as per the plaintiff, four boundaries of the plot in question is incorrectly stated. Therefore, an application was given before the Court vide Exh. 156, which was not entertained by the learned trial Court by observing that the petitioner can get his documents proved about ownership with the help of D.I.L.R. It is case on behalf of the petitioner that pursuant to the said order passed below Exh. 156, petitioner applied to the office of the District Inspector Land Record for survey and the report with respect to measurement and in pursuance thereof vide SCA/543/2008 4/9 JUDGMENT communication dated 12.3.2007, the petitioner was replied that in the event if the order is made from the Competent Court, an appropriate report can be submitted. Therefore, the petitioner submitted the application at Exh. 170 for inspection and report to be made from the office of the D.I.L.R., which came to be rejected by the learned trial Court by impugned order dated 10.9.2007. Being aggrieved and dissatisfied with the same, the petitioner-original defendant has preferred the present Special Civil Application under Article 227 of the Constitution of India. 4. Shri A.M. Dagli, learned advocate appearing on behalf of the petitioner has submitted that the learned trial Court has materially erred in dismissing the application Exh. 170. It is submitted that when earlier the application was instituted at Exh. 156, the said application was not entertained by the learned trial Court by observing that the petitioner can get his document proved about the ownership with the help of SCA/543/2008 5/9 JUDGMENT D.I.L.R. and thereafter when the petitioner has approached the office of the D.I.L.R., it is told that if the Court directs the inspection and report from D.I.L.R. office can be made and, therefore, when the petitioner has approached the learned trial Court by submitting the application Exh. 170, the said application was dismissed. It is submitted that the petitioner cannot be non-suited . It is submitted that for determination of the real dispute and controversy with respect to boundaries, inspection and report on the basis of the survey by the office of the D.I.L.R. is required. It is submitted that if the D.I.L.R. office is directed to carry out inspection and report to be made after survey and measurement, no prejudice will be caused to the respondent- plaintiff and the same will be in the interest of the parties. Therefore, it is requested to allow present Special Civil Application. 5. On the other hand, the petition is opposed by Mr. N.V. Anjaria, learned advocate appearing on SCA/543/2008 6/9 JUDGMENT behalf of the respondent original-plaintiff. It is submitted that as such, the disputed land is a "Vada land" and as so observed by the District Inspector of office of the D.I.L.R. dated 12.3.2007 their office do not keep the record and measurement of the "Vada land" and / or the plot out of "Vada" land, therefore, even if the office of the D.I.L.R. is directed to have inspection and submitting report, they will not be in a position to do the same. It is further submitted that, as such earlier application submitted by the petitioner for preparing the panchnama by D.I.L.R. was already rejected and / or his application for preparing the panchnama and appointment of the Court Commissioner is rejected, therefore, application Exh. 170 was not maintainable. The learned trial Court has rightly rejected the application Exh. 170. Therefore, it is requested to dismiss the present Special Civil Application. 6. Heard the learned advocates appearing on behalf of the respective parties. SCA/543/2008 7/9 JUDGMENT 7. At the outset, it is required to be noted that earlier the petitioner had submitted application Exh. 156 for inspection, survey and measurement of the land and the report of the office of the D.I.L.R and the same came to be dismissed by the learned trial Court vide order dated 19.1.2007 observing that it will be open for the petitioner to get his document proved about the ownership with the help of D.I.L.R. Considering the same petitioner approached the office of the D.I.L.R. and vide communication dated 12.3.2007 office of the D.I.L.R. Kutch has informed the petitioner that they did not have the record and measurement of the plots of Gamthal Vada and inspite of that if the petitioner has document of ownership such as revenue record, village Form No. 7/12, Village Form No. 6-A, the order of the competent Court and on payment of necessary fees and if the Court directs to prepare the panchnama, the steps can be taken. Therefore, the petitioner submitted application Exh. 170, which came to be rejected. At one point SCA/543/2008 8/9 JUDGMENT of time, the application submitted by the petitioner below Exh. 156 came to be rejected by observing that petitioner can get the D.I.LR. report after inspection and survey by the said office and subsequently when the D.I.L.R. has submitted a report to the effect that, if the Court directs they can prepare the panchnama and inspection report after measurement. Thereupon, when the petitioner approached the learned trial Court for appropriate order by submitting application Exh. 170, the same is rejected. The petitioner cannot be looser at both the hands. It appears that the present application has been submitted under Order 23 Rule 9 of the Code of Civil Procedure. The dispute is with respect to the boundaries and, therefore, if the D.I.L.R. is directed to submit the report after inspection and measurement it will be in the interest of both the parties and as such no prejudice will be caused to the respondent-original plaintiff. Under the circumstances, the impugned order passed below Exh. 170 deserves to be quashed and set aside. SCA/543/2008 9/9 JUDGMENT 8. For the reasons stated above, the petition succeeds. The impugned order passed by the learned trial Court passed below Exh. 170 in Regular Civil Suit No. 62 of 2001 dated 10.9.2007 is hereby quashed and set aside and the said application Exh. 170 is allowed and learned trial Court is directed to issue necessary direction to D.I.L.R., Kutch- Anjar to submit the report after preparing the panchnama, survey and measurement of the disputed properties and same shall be done on payment of necessary court fees by the petitioner with the D.I.L.R.. 9. Rule is made absolute. In the facts and circumstances of the case, there shall be no order as to costs. (M.R. Shah, J) Kaushik