The High Court dismissed the writ petition challenging the Joint Civil Judge's order appointing a Court Commissioner for joint measurement of land in a partition suit, finding no illegality or perversity in the lower court's decision.
The writ petition was dismissed. The trial court was directed to expedite the suit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1820 OF 2020
SANDESH KANHAIYYALAL MUTHA AND ANOTHER
VERSUS
PRABHAVATIBAI ASHOK RANDHE
Advocate for Petitioners : Mr. Ajit B. Kadethankar
Advocate for Respondent : Ms. P. V. Bodkhe
CORAM : NITIN B. SURYAWANSHI, J.
DATE : 09th FEBRUARY, 2022
PER COURT :
1.This petition challenges the order dated 12-11-2019, passed
by the learned Joint Civil Judge, Junior Division, Paithan, below Exhibit-
32 in R.C.S. No.68/2009, thereby allowing the application filed by the
respondent – plaintiff under Order XXVI Rule 9 of the Code of Civil
Procedure.
2.Having heard the rival submissions of the respective learned
advocates representing the petitioners and the respondent, and on
perusal of the impugned order, it is clear that the suit is based on
measurement report dated 14-06-2005. The contention of the plaintiff is
that she purchased the suit land admeasuring 1 Acre 25 Gunthas from
defendant No.2 (i.e. petitioner No.2 herein) and after the measurement
she came to know that 17 Gunthas land is less in her possession. The
suit is filed for possession of the 17 Gunthas land. Earlier, the surveyor
measured the land bearing Survey No.301/01 but the said measurement
map does not show that 17 Gunthas land is in whose possession. In that
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view of the matter, the plaintiff filed application seeking joint
measurement of Survey Nos. 301/01 and 301/02.
3.The trial Court has recorded a finding that it is not
necessary to remeasure the suit land by the same authority. However, the
joint measurement of lands is necessary, hence, appointment of Court
Commissioner is necessary to resolve all the controversies between the
parties and the dispute cannot be resolved on the basis of oral evidence.
In terms of Rule 9 of Order XXVI, local investigation of lands is
necessary for elucidating the matter in dispute.
4.The learned advocate for respondent strenuously opposed
the petition on the ground that appointment of Court Commissioner is
prayed at premature stage and the trial Court ought to have rejected the
same. I do not agree with the said submission. In view of the reasons
assigned by the trial Court in the impugned order that, the dispute
cannot be resolved on the basis of oral evidence and appointment of
Court Commissioner is necessary to resolve the controversies between
the parties, I do not find any illegality or perversity in the order passed
by the trial Court.
5. Writ petition, being devoid of merit, is dismissed. No costs.
6.Since the suit is of the year 2009, the trial Court shall
expedite the suit.
(NITIN B. SURYAWANSHI, J.)
SVH
2 issues framed by the court
Whether the appointment of a Court Commissioner under Order XXVI Rule 9 CPC was premature or illegal.
Whether the impugned order allowing the application for joint measurement was perverse.
1 provisions across 1 enactments
Sandesh Kanhaiy Lal Mutha
Anqhther
Prabhavatibai Ashok Randhe
Nitin B. Suryawanshi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court