JUDGMENT :

1. This petition under Articles 226 & 227 of the Constitution of India has been preferred claiming the following reliefs:

“a.) by an appropriate writ, order or direction, it is humbly prayed that the present Writ Petition may kindly be allowed and the Order Dated 28.08.2023 passed by District Judge, Jaisalmer in Appeal No.21/2023 (Annexure-1) may kindly be quashed and set aside; and

b.) That if during these proceeding, if commissioner report may be brought before learned court below, then same may be declared illegal and may not be allowed to be used while determining the lis between the parties

c.) by an appropriate writ, order or direction, it is humbly prayed that the encroachment done by the Respondent shall be removed and further restrain to do any act of encroachment and status quo be maintained; and

d.) Any other order which may be deemed just and proper in the facts and circumstances of the case may kindly be passed in favour of the Petitioner and Cost of the writ petition may kindly be awarded to the petitioner.”

2. Brief facts of the case, as placed before this Court by learned counsel of the petitioner, are that the petitioner instituted a suit for permanent and perpetual injunction, alongwith application for temporary injunction, against the respondents, before the learned Civil Judge (Junior Division), Jaisalmer, which was dismissed vide vide order 28.07.2023.

2.1. Aggrieved by the order dated 28.07.2023, the petitioner preferred an appeal under Order 41 Rule 1 along with Section 96 CPC before the learned District Judge, Jaisalmer, Thereafter, the respondents filed an application before the learned Appellate Court seeking appointment of Mauka Commissioner for site inspection of the disputed property to ascertain, amongst others, the actual status of possession over such property. The learned Appellate Court vide the impugned order dated 28.08.2023 allowed the said application, while appointing the Mauka Commissioner for the aforementioned purpose.

3. Learned counsel for the petitioner submitted that the Mauka commissioner cannot be appointed for collection of evidence with regard to possession over the subject property, and therefore, the impugned order is not justified in law.

3.1. Learned counsel further submitted that the purpose of the respondents behind seeking appointment of the Mauka Commissioner was to bring evidence contrary to the admissions made during the cross-examination, so as to persuade the Court to order regularization of an illegal encroachment made upon the disputed land.

3.2. Learned counsel also submitted that the respondents made false averments in the application in question for appointment of Mauka Commissioner, and therefore, the learned Appellate Court clearly fell into error in passing the impugned order.

3.3. In support of such submissions, learned counsel relied upon the judgment rendered by Hon’ble High Court of Telengana in the case of Bandi Samuel Vs Medida Nageswara Rao (Civil Revision Petition No. 338 of 2016, decided on 04.11.2016).

4. On the other hand, Mr. Manoj Bhandari, learned Senior Counsel assisted by Mr. Govind Lal & Mr. Leela Dhar Khatri appearing on behalf of the respondents, while opposing the aforesaid submissions made on behalf of the petitioner, submitted that the entire dispute was with regard to false documents, pertaining to the disputed property, on the basis of which, the petitioner tried to establish his possession over the disputed property, which is not permissible in law.

4.1. It was further submitted that the petitioner has shown wrong description of the land in question, and therefore, it was necessary to appoint the Mauka Commissioner for preparing the mauka report of the all corners of the property in question. It was thus submitted that the learned Appellate Court has rightly passed the impugned order of appointment of Mauka Commissioner.

5. Heard learned counsel for the parties as well as perused the record of the case alongwith judgment cited at the B