Allowed¶27

Raj Kumar S/O Ram Chandra v. Shambhu Upadhyay S/O Shri Jagat Prasad Sharma

Rajasthan HC2 Apr 2025CW/17834/2024

Case brief

AI extract

What is this about?

Rajasthan High Court (Jaipur Bench) writ petition allowed; Order 26 Rule 9 CPC application for appointment of Commissioner/local inspection restored. Trial court (District Judge, Sawai Madhopur, Civil Misc. Case No.12/2020) erred in refusing appointment of Tehsildar as Commissioner to report on encroachment of khatedari land (Khasra Nos. 322, 323, 326); shop built on 25.76 sq. ft.; impugned order dated 16.02.2023 set aside. Precedents cited on behalf of petitioner: Haryana WAQF Board v. Shanti Sarup (2008) 8 SCC 671; Ravindra Nath v. Piyush Kumar Joshi 2019 (3) DNJ (Raj.) 1183.

What did the court decide?

Learned trial Court is directed to appoint Tehsildar as a Commissioner for procuring the report regarding encroachment upon the petitioner’s land. ¶27

Raj Kumar S/O Ram Chandra Vs Shambhu Upadhyay S/O Shri Jagat Prasad Sharma — Rajasthan HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Learned trial Court is directed to appoint Tehsildar as a Commissioner for procuring the report regarding encroachment upon the petitioner’s land.

¶27

Issue for consideration

Whether the trial court erred in dismissing the petitioner's application under Order 26 Rule 9 CPC for appointment of the Tehsildar as Commissioner for local inspection to procure a report regarding encroachment on the petitioner's khatedari land.

¶18

Court's answer

The facts stated in the civil suit - respondent No.1's encroachment upon the petitioner's khatedari land and construction of a shop upon 25.76 Sq. ft. of land - could only be clarified by way of the Commissioner's report; therefore the learned trial Court committed an error in rejecting the petitioner's application.

¶23

Ratio / Principle

The writ petition is allowed; the trial court's order dated 16.02.2023 is set aside and the trial court is directed to appoint the Tehsildar as Commissioner to procure the report regarding encroachment upon the petitioner's land.

¶27

Detailed headnote1 paragraphs

High Court of Judicature for Rajasthan, Jaipur Bench - S.B. Civil Writ Petition No. 17834/2024 (order dated 02/04/2025, Narendra Singh Dhaddha, J.). The petitioner had sued respondent No.1 alleging encroachment upon his khatedari land of Khasra Nos. 322, 323 and 326 and sought, under Order 26 Rule 9 CPC, appointment of the Tehsildar as Commissioner for local inspection to procure a report on the encroachment; the District Judge, Sawai Madhopur dismissed that application by order dated 16.02.2023 in Civil Miscellaneous Case No.12/2020. Holding that the admitted facts - encroachment upon khatedari land and building of a shop upon 25.76 Sq. ft. - could only be clarified by way of the Commissioner's report, and that the trial court had thereby committed an error, this Court allowed the writ petition, set aside the order dated 16.02.2023, and directed the trial court to appoint the Tehsildar as Commissioner to procure the report regarding encroachment upon the petitioner's land; stay application stood disposed of.

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

S.B. Civil Writ Petition No. 17834/2024

¶3

Raj Kumar S/o Ram Chandra, Aged About 67 Years, Occupation Agriculture R/o Alanpur Presently At Ran Thambor Circle, Station Road, Sawai Madhopur, Tahat Tehsil And District Sawai Madhopur.

¶4

----Petitioner

¶5

Versus

¶6

Shambhu Upadhyay S/o Shri Jagat Prasad Sharma, Aged About 74 Years, Occupation Business R/o Apposite Purani Jail School City Sawai Madhopur, Tahat Tehsil And District Sawai Madhopur.

¶7

Dinesh Kumar S/o Ram Swroop Paliwal, R/o House No. 6 Prem Mandir Colony Bajriya Sawai Madhopur.

¶8

State Of Rajasthan, Through Tehsildar, Sawai Madhopur.

¶9

----Respondents

¶10

For Petitioner(s)	: Mr.	BrijBhushan Ojha,Adv.
For Respondent No.3	: Mr.	NeerajBatra,GC

¶11

HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA

¶12

Order

¶13

02/04/2025

¶14

This Civil Writ Petition has been filed by the petitioner against the order dated 16.02.2023 passed by learned District Judge Sawai Madhopur in Civil Miscellaneous Case No.12/2020, whereby application under Order 26 Rule 9 CPC filed by the petitioner for appointment of Commissioner has been dismissed.

¶15

Learned counsel for the petitioner submits that the petitioner filed a suit against respondent-defendant (for short ‘the defendant’) in which petitioner clearly stated the respondent No.1 had encroached upon Khatedari land of Khasra Nos.322, 323 and

¶16

[CW-17834/2024]

¶17

(2 of 3)

¶18

Learned counsel for the petitioner also submits that the petitioner filed an application before the trial court that Tehsildar be appointed as Commissioner for local inspection for procuring a report regarding encroachment on the land but the trial court committed an error in dismissing the said application.

¶19

Learned counsel for the petitioner has placed reliance upon the judgment passed by the Hon’ble Apex Court in the case of Haryana WAQF Board Vs. Shanti Sarup & Others reported in (2008) 8 SCC 671.

¶20

Learned counsel for the petitioner has also placed reliance upon the judgment passed by this Court in the case of Ravindra Nath & Ors Vs. Piyush Kumar Joshi reported in 2019 (3) DNJ (Raj.) 1183 .

¶21

Learned Government Counsel for the respondent No.3 has opposed the arguments advanced by learned counsel for the petitioner and submitted that the learned trial Court rightly rejected the application filed by the petitioner that as for collection of the evidence, Commissioner cannot be appointed. So, petition be dismissed.

¶22

I have considered the arguments advanced by learned counsel for the petitioner as well as learned G.C. for the respondent No.3 and perused the impugned order.

¶23

It is an admitted position that the petitioner in civil suit clearly mentioned that respondent No.1 had encroached upon the petitioner’s khatedari land and built a shop upon 25.76 Sq. ft. land. These facts could only be clarified by way of the Commissioner’s report. So in my considered opinion, learned trial Court had committed an error in rejecting the application filed by

¶24

[CW-17834/2024]

¶25

(3 of 3)

¶26

the petitioner. So, petition filed by the petitioner deserves to be allowed.

¶27

Therefore, petition filed by the petitioner is allowed. Order dated 16.02.2023 passed by the trial court is set-aside. Learned trial Court is directed to appoint Tehsildar as a Commissioner for procuring the report regarding encroachment upon the petitioner’s land.

¶28

Stay application stands disposed of.

¶29

(NARENDRA SINGH DHADDHA),J

¶30

Gourav/54

Raj Kumar S/O Ram Chandra v. Shambhu Upadhyay S/O Shri Jagat Prasad Sharma

Case brief

What is this about?

What did the court decide?

Raj Kumar S/O Ram Chandra v. Shambhu Upadhyay S/O Shri Jagat Prasad Sharma

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Vishal Bajaj Vs Asha Kumari and Ors.

Yogendra Singh S/O Bhoopsingh Vs the State of Rajasthan

Rajveer Singh S/O Pooran Singh Vs State of Rajasthan

Suresh Chand Sharma S/O Ramdev Bohra Vs Kalyan S/O Bardha

Sirajuddin Vs State of Raj and Anr.

Smt Shushila Devi Vs the Life Insurance Corporation