PALABHAI VARVABHAI GOJIYA Vs. NATHIBEN MAKANBHAI DALWADI

JUDGEMENT

(1.) Heard learned counsel Mr. Nirav C. Thakkar and Mr. Pratik Jasani, learned counsel for the respective parties.

(2.) This petition under Article 227 of the Constitution of India, assails the legality and correctness of the order dtd. 7/7/2010 passed by the learned Civil Judge, Lalpur, Dist.: Jamnagar in Regular Civil Suit No. 58 of 2007, whereby, the prayer made in the application Exh. 80 filed by the plaintiff for measurement of the site by the Surveyor was rejected.

(3.) Facts and circumstances giving rise to file the present application are that, the petitioner herein being original plaintiff, filed Regular Civil Suit praying that the defendant be directed to remove the encroachment on the suit land and further restrained them from interfering with the action of the plaintiff of putting fencing around the land for protection purpose. The petitioner - plaintiff is the owner and occupier of revenue survey No. 63/2, whereas, the respondent no. 1 and 2 defendants are the owner of revenue survey No. 63/3 and 63/1. It is alleged by the petitioner that for the purpose of demarcation of land, he had put stones on the land, however, the defendants have started encroachment on the land and the stones put by him were removed by the respondent nos. 1 and 2 and have started cultivating the suit land. The petitioner vide Exh. 7 prayed that the panchnama of the land be carried out through office of DILR and appropriate measurement in the form of map be drawn on the place. Vide order dtd. 13/9/2007, the trial Court allowed the application and directed the concerned authority to carry out the panchnama as well as measurement. Pursuant to the order passed by the Court, the officer of the DILR did not acted as directed by the Court and observed that, the land survey no. 63 is a big parcel of land and the petitioner plaintiff could not able to show the possession of his part of the land. Being aggrieved with the proceedings and observations made by the Officer concerned, the petitioner herein submitted written objection vide Exh. 80, inter-alia stating that the order of the Court was not complied by the DILR, as the demarcation of the land is required and necessary to enable the court to decide the lis between the parties. It is further stated in the objection that, in the Rojkam (proceedings) undertaken by the DILR, the tampering was done in the last line of the proceedings with an intention to create evidence. The plaintiff herein in the objection Exh. 80 prayed that the Court may issue notice to the commissioner and take necessary action against him for the alleged tampering of the Rojkam and non- compliance of the court order and direction be issued to make local inspection and measurement as prayed earlier. The trial Court vide order dtd. 7/7/2010, rejected the objection and turned down the request to draw the panchnama and measurement to be undertaken by the DILR. The learned trial Court while rejecting the application observed that, at relevant time, before the court commissioner, the plaintiff petitioner was failed to show his part of land.