RAJENDRA SUGAMCHAND SHAH Vs. CHANDUBHAI NAGINBHAI SOLANKI

JUDGEMENT

(1.) This petition is filed under Article 227 of the Constitution of India challenging the order dtd. 9/8/2021 passed by the 5th Additional Senior Civil Judge and ACJM, Surat below Exhibit- 143 in Special Civil Suit No. 216 of 2005, whereby application Exhibit-143 given by the petitioner - defendant No. 28, praying for appointment of Court Commissioner for local inspection under Rule 9 Order XXVI of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") came to be rejected.

(2.) Ms. Varsha Brahmbhatt, learned advocate for Ms. Pooja H. Bhardwaj, learned advocate for the petitioner, submitted that the petitioner - defendant No. 28, after he being joined as party defendant, he has filed his written statement and has applied vide Exhibit-143 claiming in it that what is mentioned in the suit about the suit land being an agricultural land, is incorrect, whereas suit land is already converted to a non-agricultural land even prior to the filing of the suit and as on date, there exists compound wall covering the suit land and security cabin also. In short, it is claimed in the application Exhibit-143 that the possession of the suit land is with petitioner - defendant No. 28. Therefore, she has submitted that with a view to have the local inspection at the suit land, appointment of Court Commissioner is required to determine the lis between the parties in the suit.

(3.) Having heard the learned advocate for the petitioner and perusing the impugned order along with the documents annexed with it, it is clear that the suit in question came to be filed in the year 2005 and the petitioner - defendant No. 28 appears to have purchased the suit land from defendant No. 18 on 30/3/2015 and the plaintiff having come to know about it, on 16/4/2016, applied for joining petitioner - defendant No. 28 in the suit, which came to be granted. The said order came to be passed on 11/7/2019. It appears that thereafter, on 22/10/2019, the petitioner - defendant No. 28 filed the application Exhibit-143 to draw the panchnama, prepare the map through Court Commissioner of the suit land.