Point of Law: there is no requirement of any Notice before passing the order of appointing the Commissioner to draw the panchnama and the only requirement is of the Notice to be given by the Court Commissioner before drawing the panchnama to all the parties.

JUDGMENT :

1. RULE. Learned Advocate, Mr.D.K. Puj waives service of rule on behalf of the Respondent Nos.1 to 5 and learned Advocate, Mr. Jigar Patel waives service of rule on behalf of the Respondent No.9.

2. This petition is filed under Article-227 of the Constitution of India for challenging the order dated 22-09-2020 passed below application Exh-10 and order dated 08-09-2020 passed below Exh-7 passed by the 11th Additional Senior Civil Judge, Gandhinagar in the proceedings of Special Civil Suit No. 96 of 2020. The Order below Exh-7 was passed on an application filed by the respondent Nos. 1 to 5 who are original plaintiffs in the Civil Suit for the purpose of carrying out panchnama by appointing the Court Commissioner. Thereafter, the petitioner–original Defendant No.13 filed an application Exh-10 with the prayer to recall the order dated 08-09-2020 passed below Exh-7. An application, Exh-10 came to be rejected, consequently, the Order passed below Exh-7 was confirmed. It is this issue which is the subject matter of challenge in this petition.

3. Learned Advocate for the petitioner submitted that it is the case of the petitioner that though the respondent Nos. 1 to 3 had executed the Sale Deed dated 11-05-2017 in favour of the petitioner, they proceeded to execute the Second Sale Deed of the same land in favour of the respondent No.4 and 5 and therefore, the petitioner had instituted the Special Civil Suit No.212 of 2019 against the respondent Nos.1 to 5 seeking declaration of the ownership of the land and cancelling of subsequently executed Sale Deed dated 10-07-2019.

4. In the Special Civil Suit No.212 of 2019 by the petitioner, it was also for an appointment of the Court Commissioner for preparation of the panchnama and drawing of map of the suit land, which came to be allowed and accordingly, the panchnama and map were drawn on 19-09-2019 in the presence of the respondent Nos.1, 2, 4 and 5. The panchnama therefore drawn on 19-09-2019 clearly records the position as it existed on the suit land and that the respondents at no point of time, have objected to carrying out of such panchnama or have challenged the order under which the panchnama was executed.

5. It is submitted that the dispute with regard to the suit land is also pending before the Revenue Authorities and the petitioner has filed Special Civil Application No. 10858 of 2020 challenging the order of SSRD dated 20-08-2020 rejected the Mutation entry posted in favour of the petitioner. It is submitted that though the Special Civil Application has been decided against the petitioner, however, the petitioner is contemplating to file an appeal against such order. It is submitted that nothing happened in the suit land right from the day of executing of panchnama on 19-09-2019. However, on 14-09-2020, the respondent Nos. 4 and 5 with a mob of nearly 50 to 100 persons tried to trespass into the suit land and tried to demolish the existing structures on the suit land, for which the petitioner was constrained to file a Criminal complaint with the Adalaj Police Station.

6. It is submitted that after the incident, the petitioner herein who is original Defendant No.13 in the Special Civil Suit No. 96 of 2020 received the summons of the suit on 17-09- 2020 and on 18-09-2020, the petitioner was served with the notice of the Court Commissioner about the appointment of the Court Commissioner and carrying out of the panchnama of the suit land. According to the Notice by the Court Commissioner, the panchnama was to be drawn on 20-09-2020 and therefore, the petitioner filed an application, below Exh-10 on 18-09-2020 for recalling the order dated 07-09-2020. It is submitted that thereafter, the Civil Judge proceeded to hear the application below Exh- 10, came to be rejected. It is submitted that while rejecting, the Court has not committed an error in not considering the checkered history of the litigation with regards to the same land. The panchnama has been drawn and therefore, the or