KARNA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The order under challenge has been passed by the Civil Judge and Judicial Magistrate, Barmer in a suit filed by the petitioner-plaintiff. Bereft of unnecessary detail brief facts for adjudication of the writ petition within the confines of application filed by the plaintiff under Order 39, Rule 7 and Order 26, Rule 9 of the Code of Civil Procedure,1908 are that the petitioner-plaintiff filed the suit for mandatory and permanent injunction, with the prayer to restrain the respondents defendants from raising construction of Gram Panchayat Bhawan at any other place, than the land surrendered by him at Khasra No. 871/617.

(2.) During the course of the proceedings, the petitioner moved an application seeking appointment of the commissioner while invoking provisions under Order 39, Rule 7 and Order 26, Rule 9 of the CPC. The said application has been rejected by the court below, vide its order impugned dated 08.3.2017, observing that looking to the pleadings of the respective parties, wherein the defendants themselves have admitted that the ensuing construction is going in Khasra No. 888/578, and not in Khasra No. 871/671, on the land surrendered by the plaintiff. The Court has further observed that interim order has been passed in the case even without calling for report and the same is continuing, as such there is no new fact requiring report of the Commissioner.

(3.) Mr. Shrimali, learned counsel for the petitioner vehemently submitted that the court below ought to have appointed commissioner, who would apprise the Court about correct factual position and would have informed the Court about that the ensuing construction of the Gram Panchayat Bhawan is just adjacent to the land surrendered by the plaintiff.