IMPORTANT POINT
Appointment of Commissioner in a matter concerning illegal encroachment is justified.

ORDER

This Civil Writ Petition has been filed by the petitioner against the order dated 15.04.2021 passed by learned District Judge Sawai Madhopur in Miscellaneous Application No.08/2020, whereby application under Order 26 Rule 9 CPC for appointment of Commissioner and for calling factual report of the illegal encroachment upon the petitioners land Khasra No.322 & 323 was dismissed.

2. Learned counsel for the petitioner submits that the petitioner had filed a suit against respondent No.1 in which petitioner clearly stated the respondent No.1 had encroached upon his land. So, he had filed an application before the learned trial Court under Order 26 Rule 9 CPC but learned trial Court vide order dated 15.04.2021 wrongly dismissed the application filed by the petitioner. Learned counsel for the petitioner further submits that the respondent had encroached upon the land of Khatedari Khasra Nos.322, 323 and constructed a shop upon 15.77 Sq. feet. Learned counsel for the petitioner further submits that the petitioner had filed an application before the learned trial Court that a Tehsildar be appointed as Commissioner for local inspection and for procuring a report regarding encroachment of the land.

3. 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.

4. 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.

5. Learned counsel for the respondent 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 for collection of the evidence, Commissioner cannot be appointed. So, petition be dismissed.

6. I have considered the arguments advanced by learned counsel for the petitioner as well as learned counsel for the respondent and perused the impugned order.

7. It is an admitted position that petitioner in civil suit clearly stated that respondent had encroached upon his land and built a shop upon 15.77 Sq. feet. These facts can only be clarified by way of the Commissioner’s report. So in my considered opinion, learned trial Court wrongly rejected the application filed by the petitioner. So, petition filed by the petitioner deserves to be allowed.

8. Therefore, petition filed by the petitioner is allowed. Order of the learned trial Court dated 15.04.2021 is set-aside. Learned trial Court is directed to appoint a Commissioner as Tehsildar for procuring the report regarding encroachment upon the land of the petitioner.

Stay application stands disposed of.