The main legal point established is that the appointment of a Court Commissioner for local investigation is a valid procedural step to resolve disputes over property ownership and encroachment.

ORDER :

1. By way of this petition under Article 227 of the Constitution of India, the petitioner-original plaintiff challenges the order dated 02.09.2022 passed below Exhibit-315 and order dated 17.09.2020 passed below Exhibit-338 (wrongly stated to be Exh-457 in the prayer clause), contending that the said orders are illegal and passed without hearing the petitioner, so far as order passed below Exhibit-338 is concerned.

2. In addition to it, on merit, other grounds are raised.

3. The petitioner is the original plaintiff, who had filed a suit being Regular Civil Suit no. 78 of 2006 in the Court of Civil Judge (Senior Division), Godhara, claiming that suit property is owned and possessed by the petitioner-Society, as an owner, and defendants- respondents herein have no right, title or interest to remove them from the said possession or interfere with the boundary or damage or remove the boundary thereof. In short, the said suit is filed for permanent injunction restraining the defendants therein, not to interfere with their physical possession, not to damage or remove the boundary thereof. On filing of the suit, summons came to be issued, defendants appeared before the Court and filed their written statement claiming that against the petitioner-plaintiff, the proceedings under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as “the Public Premises Act”) is going on, wherein petitioner-plaintiff appeared before the Estate Officer.

3.1 According to the case of the defendants, the plaintiff has encroached upon total 1244.51 sq. meters of the land of their ownership and they have put boundary walls and fencing in the property of the ownership of the defendants. Though other details of the suit and proceedings therein are not necessary for the purpose of this decision, suffice it to say that the petitioner-plaintiff has been granted an order of injunction in his favour, which is confirmed by the Appellate Court also. However, not only the Appellate Court but this Court also directed expeditious disposal of the suit, within three months of the Appellate Court’s order from 13.04.2006, but this Court also directed the same to conclude the suit proceedings within 08 weeks from the receipt of the order dated 24.07.2013 passed in Special Civil Application No. 7785 of 2011, that too, at the instance of the present petitioner. Neither the suit is disposed of within a period of three months, as directed by the Appellate Court in an appeal challenging an order passed below Exhibit-5 to conclude the same within three months from 13.04.2006, even suit is yet not completed despite the High Court directed its disposal within 08 weeks from the receipt of the said order dated 24.07.2013. Despite 09 long years have passed and there is an order of injunction in favour of the plaintiff and direction by the Court for expeditious disposal of the suit within a time bound programme, it has yet not been concluded. Without going into the details, who is responsible for the same, fact remains that it is yet not concluded, over and above the injunction, the proceedings under “the Public Premises Act” are also stayed by this Court in a proceedings again filed by the petitioner till the conclusion of the suit.

3.2 Coming back to the challenge in this petition, by way of Exhibit-315 application, the respondents-defendants requested the Court for appointment of Court Commissioner for local investigation under Order XXVI, Rule 9 and 10 of the Civil Procedure Code, 1908 (hereinafter referred to as “the Code”) as it is coming out from the pleading that there is a dispute with regard to the encroachment over the land of the defendants, whereas plaintiff claims it to be of their ownership, to draw the panchnama and the map.

3.3 After hearing the parties, Principal Senior Civil Judge, Dahod vide order dated 02.09.2022 directed the District Inspector Land Records, Dahod be appointed as Court Commissioner to record panchnama and dr