In property dispute cases, the aspect of possession has to be established by the parties through evidence, and the appointment of a Commissioner for creating evidence may not be justified.

ORDER

1. This writ petition has been filed by the petitioners/plaintiffs aggrieved of the order dated 13.04.2022 (Annex.7) passed by the Civil Judge, Pindwara, District Sirohi whereby the application filed by the petitioner under Order 39 Rule 7 read with Section 151 CPC, has been rejected.

2. The petitioners/plaintiffs filed a suit for permanent injunction with regard to property situated at village Kojra, Tehsil Pindwara. Alongith the suit, the petitioners filed a site map. The suit was contested by the defendants and they also filed site map giving out therein the status of the possession of the property.

3. The petitioners filed application under Order 39 Rule 7 CPC in the application for temporary injunction, inter-alia, claiming that a Commissioner be appointed. In the application, the petitioners indicated that as the defendants have questioned the status of the property in terms of the site map produced by the petitioners, the actual status must be taken on record and that for the purpose of identification, present status and boundaries of the property, Commissioner be appointed.

4. The application was contested and the trial court by its order impugned came to the conclusion that as both the parties have produced different site maps, both have to prove their case by leading evidence and Commissioner for the said purpose cannot be appointed.

5. Learned counsel for the petitioners made submissions that the trial court committed error in rejecting the application filed by the petitioners, inasmuch as looking to the fact that two different site maps were filed by the parties, for the purpose of bringing on record the correct status of the property, the appointment of the Commissioner was necessary and, therefore, the order impugned deserves to be quashed and set aside.

6. Reliance has been placed on Ranjeet & Ors. vs. State of Rajasthan & Ors. : 2016 (2) DNJ (Raj.) 817 and Rakamchand & Ors. vs. Rukmani : 2022 (2) Civil Court Cases 649 (Raj.).

7. I have considered the submissions made by the counsel for the petitioners and have perused the material available on record.

8. A bare look at the application filed by the petitioners would reveal that the only plea raised was as two different maps have been filed by the parties and that the defendants have made wrong averments and, therefore, correct status has to be brought on record.

9. A perusal of two maps indicate that the size of the plot is not in dispute and what is in dispute is as to who is in possession, on which part of the property. The trial court, in those circumstances, was justified in coming to the conclusion that the aspect pertaining to possession of the property has to be established by the parties while leading evidence and the court commissioner cannot be appointed for creating evidence.

10. So far as the judgment in the case of Ranjeet (supra) is concerned, in the said case, the dispute pertains to location of the disputed construction whether the same was at the disputed site or not; and in the case of Rakamchand (supra), again the dispute pertains to the correct location of the construction, which is not the case here.

11. Consequently, the order impugned passed by the trial court does not call for interference, there is no substance in the writ petition.

12. The writ petition is, accordingly, dismissed.