GANGA DEVI Vs. THE BOARD OF REVENUE

JUDGEMENT

(1.) THIS writ petition is directed against order dt. 01.02.2013 of the Board of Revenue, Rajasthan, whereby a revision petition preferred by the respondent No. 4 to 11 herein aggrieved by the order dt. 05.06.2012 passed by the Assistant Collector, Ramsar appointing Commissioner for site inspection, stands allowed. The relevant facts are that the respondents/plaintiffs filed a suit for declaration, perpetual injunction and division of holding before the Assistant Collector, Ramsar accompanied by an application under Sec. 212 of Rajasthan Tenancy Act, 1955 (for short "the Act"). During the consideration of the application seeking temporary injunction, the petitioners herein filed an application under Order XXVI Rule 9 and Order XXXIX Rule 7 of CPC for appointment of Commissioner for site inspection. The application was allowed by the trial Court observing that for determination of the question involved, it is necessary to obtain the factual report in respect of the disputed land. Aggrieved thereby, the respondents/plaintiffs preferred a revision petition under Sec. 230 of the Act before the Board of Revenue, Rajasthan. The revision petition has been allowed by the Board holding that inspection of the site at this juncture will tantamount to assist a particular party to glean evidence. Accordingly, the order passed by the Assistant Collector dt. 05.06.2012 has been set aside and the trial Court has been directed to decide the application of temporary injunction on merits in light of evidence produced by both the parties ignoring the site inspection report. Hence, this petition.

(2.) LEARNED counsel for the petitioners submitted that the Board of Revenue has erred in observing that the application for site inspection was made to create evidence. Learned counsel submitted that the site inspection report was requisitioned by the trial Court after due consideration of the controversy involved and therefore, the Board has erred in interfering with the order without appreciation of law in correct perspective. Learned counsel submitted that pursuant to the order passed by the trial Court, the site inspection report had already been submitted by the Tehsildar and therefore, it was open for the respondents/plaintiffs to file objections, if any. Learned counsel submitted that on the facts and in the circumstances of the case, the discretion exercised by the trial Court was not required to be interfered with by the Board of Revenue in exercise of the revisional jurisdiction. In support of the contention, learned counsel has relied upon the decisions of this Court in the matters of Shabbir v. Parwati Bai & Anr.,, RBJ (20) 2013, 29 and Shanu Baheti v. Municipal Council, Pali & Anr., 2012(2) RRT 1210 and Rajeev v. State of Rajasthan & Ors., 2011(1) RRT, 624.

(3.) INDISPUTABLY , the purpose of local investigation is to obtain such evidence, which from its peculiar nature can only be had on the spot with a view to elucidate any point which is left doubtful on the evidence produced before the Court. It is pertinent to note that in the instant case, the suit is at the initial stage and the evidence of the parties has not commenced as yet. A perusal of the order dt. 05.06.2012 reveals that the trial Court has not requisitioned the site inspection report as such but has directed the Tehsildar, who was appointed as Commissioner to submit the factual report after inspection of the site and examination of the revenue record on the points specified. In the considered opinion of the Court, at this juncture, when the parties to the suit have not even commenced the evidence and the matter is being considered by the trial Court for the purpose of grant of temporary injunction as prayed for by the respondents/plaintiffs, the factual report requisitioned in the terms, indicated in the order amounts to creating evidence in favour of a particular party, which is beyond the purview of Order XXVI Rule 9 and Order XXXIV Rule 7 CPC.