1. Present petition has been filed by the petitioner for quashing the order dated 07.02.2012 passed by the learned Additional District Judge, Rishikesh, district Dehradun in M.C.A. No.127 of 2010 'Om Prakash and others Vs. Akhil Bharatwarsiya Awadhoot Bhesh'. Further prayer has been made for a direction to the Court of Additional District Judge, Rishikesh to appoint Court Amin or Advocate Commissioner for spot inspection of land in dispute.
2. Brief facts of the case, as narrated, are that petitioner is the owner and is in possession of land, bearing khasra no.103, measuring 0.26 acre, New No.745, situated in village Shyampur, Tehsil Rishikesh, district Dehradun, in which the temple, garden, samadhi and 29 shops have been constructed. In the revenue record, the said entire land was continuously recorded in the name of Basant Nath. The land was never recorded in the name of any other person till the new settlement. In new settlement, the khasra no.103 was renumbered as khasra no.745 in the fasly year 1400, which was divided as khasra nos.745 Ka, 745 Kha, 745 Ga and in the new settlement also, the said land was in possession of the petitioner, in which the residence of petitioner, temple and garden were recorded. The petitioner has left one piece of vacant land in which the Peepal tree is situated, which is being used for the purpose of pooja and anusthan and the said vacant land is being used for the purpose of parikarma of the Peepal tree. It is alleged that the controversy arose when the respondents tried to get unauthorized possession of the said vacant piece of land, which has been left by the petitioner for the purpose of parikarma of the Peepal tree at the time of pooja. The respondents threatened the petitioner that the said vacant land is their own land and they will take forceful possession of the said land. On 21.03.2008, the petitioner lodged First Information Report against the respondents for their illegal act, when they put the sand, stone and other material in the said piece of land in which the Peepal tree is situated and which is in use of samadhi, pooja and parikarma. The respondents, on 10.05.2008, came and tried to take unauthorized possession of the said land and asked the petitioner that the respondent no.1 has sold the said land to the respondent no.3. Thereafter, the petitioner filed the suit for permanent injunction along with application for temporary injunction against the respondents before the Civil Judge (Senior Division), Dehradun, which was registered as Suit No.276 of 2008. The respondents filed their written statements. The respondent no.3 filed counter claim along with application for temporary injunction, which was registered as application no.22 Ga. On 31.07.2010, the learned Civil Judge (Senior Division) Rishikesh, district Dehradun passed an order on the application no.6 Ga and application no.22 Ga (filed by the respondent no.3) and directed the parties to maintain staus quo during the pendency of the suit and restrained to raise the construction. The petitioner filed reply of the written statement filed by the respondents. Aggrieved by the order-dated 31.07.2010 passed by the Civil Judge (Senior Division), Rishikesh, the respondents filed Misc. Civil Appeal before the learned District Judge, Dehradun, which was registered as Misc. Civil Appeal No.127 of 2010. The petitioner preferred an application in appeal, which is registered as Application No.27Ga/2 for appointing the Court Amin or Advocate Commissioner for spot inspection. On 07.02.2012, the learned District Judge, Rishikesh, district Dehradun rejected the said application. Aggrieved by the order-dated 07.02.2012 passed by the learned Additional District Judge, Rishikesh, district Dehradun in M.C.A. No.127 of 2010 'Om Prakash and others Vs. Akhil Bharatwarsiya Awadhoot Bhesh', present writ petition has been filed by the petitioner.
3. Mr. Virendra Kaparwan, Advocate for the petitioner submitted that the learned Additional District Judge, Rishikesh, wrongly considered that the plaintiff/petitioner is trying to collect the evidence by making the spot inspection by the Court Amin or Advocate Commissioner and the order passed by the learned Additional District Judge is liable to be set aside. He argued that the learned Additional District Judge, Rishikesh did not consider that the suit in dispute is mainly the title dispute and this is the disputed fact before the learned Court below that what is the real status of the land in dispute, whether there is any Peepal tree or Samadhi or the land in dispute in the possession of the defendants/respondents and the said position can be verified by spot inspection through Court Amin or Advocate Commissioner, but the learned Court below did not consider this aspect of the matter and dismissed the application in technical manner, therefore, the same is liable to be set aside. Learned counsel for the petitioner contended that the learned Additional District Judge did not consider that against the order of status quo, the respondents filed the Misc. Civil Appeal with the ground that they are in possession of the land in dispute, where the case of the petitioner is that the petitioner is the owner and in possession of the said land in dispute which is used for pooja and parikarma, therefore, for verifying the said piece of land, the spot inspection by Court Amin and Advocate Commissioner is necessary which will make clear the status of the parties in land in dispute but the learned Additional District Judge, Rishikesh did not consider this aspect of the matter and illegally dismissed the application filed by the petitioner. He submitted that the learned Additional District Judge did not consider that if the Court Amin or Advocate Commissioner is appointed for spot inspection of the land in dispute, such spot inspection shall not be harmful to any party and the same will be much convenient to the Court concerned for deciding the dispute between the parties in suit, but this fact has not been considered by the learned lower appellate Court. In support of his submission, the learned counsel for the petitioner referred (2001) 6 SCC 238-Praga Tools Corporation Ltd. Vs. Mahboobunnissa Begum and others, AIR 2004 Madras 419-Vaithinattar and another Vs. Sakkubai Ammal and AIR 2003 Himachal Pradesh 87-Bali Ram Vs. Mela Ram and another.
4. Learned counsel for the respondents submitted that the said application has been rejected by the appellate Court and the said order, being an interlocutory order; not deciding any rights or claim of any party to the case, no writ petition would lie against the same, as the aggrieved party can make it ground under Section 105 of C.P.C. It is stated that the petitioner is only owner of khasra no.745 K Area (Rakba) 0.0280 hectare and the plaintiff/petitioner is not the owner of any land situated in khasra nos.745 Kha and 745 Ga situated in village Shaympur, Tehsil Rishikesh, District Dehradun. It is submitted that to prove its case (ownership over the land in dispute), petitioner/plaintiff has not filed any documentary evidence showing that he is the owner of land in dispute. It is also stated that petitioner/plaintiff only for filing his suit created a false ground by way of lodging the First Information Report. It is submitted that without any ownership right over the land in dispute, suit filed by the plaintiff/petitioner for injunction is not maintainable. It is submitted that just to create evidence and to linger the matter, petitioner/ plaintiff preferred an application for appointing the Court Commissioner or Court Amin. It is further submitted that it is settled position of law that commission should not be issued for collecting evidence in favour of the parties and the parties have to prove their case with respective independent evidence. It is also submitted that respondents in their objection filed against the application preferred by the plaintiff/ petitioner clearly stated that land in dispute is in ownership of the respondents and the plaintiff failed to file any documents relating to its ownership over the land in dispute, as it is settled position of law that plaintiff has to prove his case beyond reasonable doubt, therefore, after considering the case of both the parties, learned appellate Court rejected the application filed on behalf of the plaintiff/petitioner by the impugned order. It is submitted that plaintiff/ petitioner has not filed any document relating to his ownership before the trial Court nor before the appellate Court, but just to collect evidence in their favour moved an application for appointing the Court Commissioner and the same was rightly rejected by the learned appellate Court. It is also submitted that appellate Court rightly rejected the application moved on behalf of the petitioner and the same order is in accordance with law and as such, the writ petition filed by the petitioner deserves to be dismissed. It is also stated that grounds taken in the writ petition are without any legal substance and as such, the writ petition filed on behalf of the petitioner is also devoid of merit and is liable to be dismissed with costs. In support of his argument, he referred AIR 1998 Rajasthan 224-Union of India and another Vs. M/s. Kripal Industries.
5. I have considered the submission advanced by the learned counsel for the parties and also perused the application of the petitioner seeking spot inspection. In his application, the petitioner has simply said that dispute between the parties is regarding ownership and both the parties have not filed any map etc. and spot inspection is required for knowing the shape, nature and boundaries of the land. The ground mentioned in the application is not the valid ground for which order for spot inspection should be passed. The suit in question is for permanent injunction. Plaintiff is required to prove his prima facie case on the basis of documents filed by him. If petitioner is owner, he can file all such documents proving his ownership. Petitioner can also lead necessary evidence in support of this contention made in the plaint. In the present case, the learned Additional District Judge observed that since the disputed land has already been measured, the need for spot inspection is not there. I find no illegality in the order impugned.
6. Case law cited by learned counsel for the petitioner does not help the petitioner. In the case of Praga Tools Corporation Ltd. (2001) 6 SCC 238, the Hon’ble Supreme Court has observed that the report of the Commissioner could be an aid to the trial Court in arriving at its finding. In the present case, the Court below has clearly said that since the disputed land has already been measured, the need for spot inspection is not there. The judgment reported in AIR 2004 Madras 419 will not apply in the present case as same was suit for declaration whereas present suit was for permanent injunction. Case law reported in 2003 Himachal Pradesh 87 will not apply in the present case as in that case the Himachal Pradesh High Court has simply held that Court can issue local commission suo moto, if, in the facts and circumstances of the case, it is deemed necessary that local investigation is required. But in the present cas
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e, the trial Court clearly held that there is no need for spot inspection. 7. Learned counsel for the respondents relied upon the judgment reported in AIR 1998 Rajasthan 224, in which the Rajasthan High Court has held that power of appointment of Commissioner for local investigation cannot be exercised by the Court to assist the party to collect evidence where it can get evidence itself and for the purpose of deciding dispute regarding possession of the disputed property, issue can be framed and decided. In the present case, the disputed land has already been measured and in such circumstances, if application is allowed, the same will not only be unnecessary exercise but will be abuse of process of law. While dealing with such application, the Court is required to see whether such inspection is bonafide required for reaching correct conclusion. The Court is also required to see other factors also like whether application has been moved with malafide intention to delay the proceedings etc. In the present case, the learned Court below has considered the requirement of need for spot inspection and has passed the order. 7. In view of above discussion, the writ petition is dismissed. 8. No order as to costs.