CHANDUBHAI PREMJIBHAI PATEL Vs. BHIKHIBEN BHIKAHBHAI PATEL

JUDGEMENT

(1.) By preferring this petition, petitioner has challenged the order passed below Exh.85 dtd. 10/12/2018 by learned Principal Civil Judge, Amargadh in Regular Civil Suit No.2 of 2014 dismissing the application preferred by the present petitioner/defendant to appoint the Court Commissioner and prepare the panchnama.

(2.) Heard learned advocates for the respective parties.

(3.) Learned advocate for the petitioner has submitted that in an earlier round, an application was moved by the present petitioner below Exh.9 for appointment of the Surveyor as Commissioner for making the survey and drawing the maps of the land in question. In the application submitted by the petitioner Exh.9, it was clearly stated that respondents were trying to alter the possession which was existing since long. It is further submitted that the said application was rejected by the Court-below and the petitioner challenged the order passed below Exh.9 dtd. 6/8/2014 before this Court by preferring Special Civil Application No.12402 of 2014. It is further submitted that the said Special Civil Application was allowed by this Court on 28/2/2017 and order passed by the Trial Court dtd. 6/8/2014 was quashed. It is further submitted that the Trial Court directed the land surveyor to prepare the map as well as survey report of the lands in question on 18/4/2018. It is further submitted that the land grant surveyor and Court Commissioner prepared the panchnama and the report as well as map and submitted on 30/6/2017 before the Trial Court. It is further submitted that measurement-sheet/map prepared by the Court Commissioner was completely false and the measurement done by the Court Commissioner was contrary to the actual position and measurements of the lands and therefore, an application below Exh.80 was submitted by the petitioner on 1/9/2017 to take action against the Court Commissioner under the provisions of Contempt of Court Act , 1971 for preparing and producing the false measurement-sheet/map. That further prayer was made for appointment of the District Inspector of Lands as the Court Commissioner for preparing new map/measurement-sheet. It is further submitted that with a view to see that there is no further delay in the proceedings of the suit, on 20/3/2018, application Exh.80 was withdrawn by the petitioner. That another application Exh.85 was submitted by the petitioner on 18/1/2018 for appointment of the District Inspector of Lands as Court Commissioner for preparing new panchnama/ map/measurement-sheet. That the Trial Court erroneously and illegally rejected the application Exh.85 preferred by the petitioner. Referring the affidavits of the panchas produced on record, it is submitted that both the panchas have stated in their affidavits that the measurement-sheet prepared by the ealier Court Commissioner was completely against the actual situation and measurement of lands in question. It is further submitted that as per the affidavits of the panchas, while the measurement of the land in question was going on, it was asked to the Court Commissioner to measure each and every part of the lands in question, but the same was not done by the Court Commissioner. It is further submitted that measurement-sheet/map was prepared in absence of the petitioner as well as in absence of the panchas. That the Court Commissioner has not prepared correct map/measurement- sheet and has voluntarily prepared incorrect map/measurement-sheet. That the impugned order passed by the Trial Court dismissing the application Exh.85 is contrary to the provisions of Order 26 Rules 9 and 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the CPC" for short). That findings arrived at by the Trial Court are erroneous and contrary to the facts of the case. Hence, it was requested by learned advocate for the petitioner to allow the application Exh.85 preferred by the petitioner and quash and set aside the order passed on 10/12/2018.