Dismissed

Bimla Gupta & Ors. v. Ashim & Ors.

Punjab & Haryana HC13 Oct 2011CR/3292/2011

Case brief

AI extract

What is this about?

The High Court in a civil revision petition dismissed the petition challenging the trial court's appointment of a Halqa Girdawar as a local commissioner. The trial court appointed him to report on the existence of an alleged rasta, not to ascertain possession, therefore finding no illegality. Revoked an earlier order dismissing the petition for non-prosecution.

What did the court decide?

Revision petition dismissed; interim order of dismissal for non-prosecution recalled; case to be registered at original number.

Bimla Gupta & Ors. Vs Ashim & Ors. — Partition | Punjab & Haryana HC (2011)

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C.M.No.25029-CII of 2011 in Civil Revision No.3292 of 2011(O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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C.M.No.25029-CII of 2011 in Civil Revision No.3292 of 2011(O&M) Date of Decision: November 2, 2011

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Bimla Gupta and others

.....Petitioners

Ashim and others

.....Respondents

CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA

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Present: Mr.Sanjiv Gupta, Advocate for the applicants-petitioners.

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.....

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RAM CHAND GUPTA, J.(Oral)

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C.M.No.25029-CII of 2011

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In view of the facts mentioned in the application, the same is allowed and order dated 13.10.2011 dismissing the petition for nonprosecution is recalled.

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Registry is directed to register the case at its original number. Application stands disposed of accordingly.

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Civil Revision No.3292 of 2011

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The present revision petition has been filed under Article 227 of the Constitution of India against order dated 3.5.2011 passed by learned Civil Judge (Junior Division), Karnal, vide which application filed by respondents-defendants for appointment of local commissioner was accepted.

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I have heard learned counsel for the petitioners and have gone through the whole record carefully including the impugned order passed by

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C.M.No.25029-CII of 2011 in Civil Revision No.3292 of 2011(O&M)

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learned trial Court.

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Briefly stated, present petitioners-plaintiffs filed this suit for permanent injunction restraining respondents-defendants from interfering in possession of the petitioners-plaintiffs over the rasta in dispute which was allegedly sold to present petitioners-plaintiffs by the father of respondents-defendants alongwith some other property. An application was filed by respondents-defendants for appointment of local commissioner to visit the spot and to report about existing state of affairs at the site. Application was opposed by present petitioners-plaintiffs and, however, vide impugned order, learned trial Court exercised its discretion and ordered for appointment of Halqa Girdawar as local commissioner, operative part of which reads as under:-

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“After hearing learned counsel for both the parties and carefully going through the case file, it transpires that the plaintiffs have claimed that they have purchased four plots shown in red colour with the plaint vide sale deed dated 17.10.2006 and 20' wide rasta on the western side of the plot was given for ingress and egress of the plaintiffs. However, the defendants are trying to put a barbed wire to block the rasta. On the other hand, the defendants have categorically denied that existence of any such alleged rasta upon the disputed site. In these facts and circumstances of the case, this court is of the considered opinion that if the local commissioner is appointed, his report will certainly help the court in adjudicating the real dispute between the parties in a proper and effective manner. Accordingly, the application

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C.M.No.25029-CII of 2011 in Civil Revision No.3292 of 2011(O&M) -3-

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in hand is allowed and Halqa Girdawar is appointed as a local commissioner to report in detail about the existing position of the suit property as well as the areas surrounding the suit property. He shall also submit a detailed site plan as well as 15-20 photographs of the actual site alongwith his report. His fees is assessed as Rs.2000/- to be paid by the applicants/defendants. The local commissioner shall visit the site in dispute after serving proper notice to both the parties and submit his report on or before 4.6.2011. Intimation be sent to him for necessary compliance.

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Adjourned to 4.6.2011 for awaiting local commissioner report.”

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It has been contended by learned counsel for the petitionersplaintiffs that local commissioner cannot be appointed to ascertain possession of the parties over the property in dispute, as it is for the parties to lead evidence to establish their possession. On the point he has placed reliance upon a judgment rendered by Madras High Court in Meenakshi v. Vennila and another 2009(5) RCR (Civil) 278 and a judgment of this Court rendered in Vinod Kumar v. Gram Panchayat of Village Kheri Naru and others 2008(1) RCR (Civil) 697.

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So far as legal proposition held in the aforesaid authorities is concerned, there is no dispute. However, in this case local commissioner has not been appointed by learned trial Court to ascertain possession of either of the parties. Dispute is regarding existence of rasta. Halqa Girdawar has been appointed to visit the spot and to submit a detailed site plan about existing position at the spot. He has not been asked to report as

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C.M.No.25029-CII of 2011 in Civil Revision No.3292 of 2011(O&M) -4-

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to who is in possession of the same.

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Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.

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Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others, 2003(6) SCC 675 : AIR 2003 SC 3044: 2004(1) RCR (Civil) 147, that supervisory jurisdiction is not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors for drawing inference like a Court of appeal. It has been observed as under:-

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“Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.”

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Hence, the present revision petition is, hereby, dismissed being

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devoid of any merit.

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(Ram Chand Gupta) Judge

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2.11.2011

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meenu

Bimla Gupta & Ors. v. Ashim & Ors.

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Bimla Gupta & Ors. v. Ashim & Ors.

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