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SCA/7199/2011 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7199 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================
1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
No
2.
To
be referred to the Reporter or not ?
No
3.
Whether
their Lordships wish to see the fair copy of the judgment ?
No
4.
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
No
5.
Whether
it is to be circulated to the civil judge ?
No
=========================================
MINSHI
SAJANBHAI DANGAR - Petitioner(s)
Versus
SAMATBHAI
JETHABHAI NANDANIA - Respondent(s)
=========================================
Appearance
:
MR VIVEK
MAPARA for MR VH KANARA for
Petitioner(s) : 1,
None for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 17/06/2011
ORAL
JUDGMENT
1. By way of this
petition under Article 227 of the Constitution of India, petitioner –
original defendant has prayed for an appropriate order to quash and
set aside the impugned order passed by the learned 6th
Additional Senior Civil Judge, Jamnagar below Exh.13 in Regular Civil
Suit No.337/2010 dated 10/05/2011 by which the application submitted
by the petitioner – defendant to recall the earlier order to
appoint the Court Commissioner and to prepare the panchnama of the
suit property has been rejected.
2. Shri Vivek
Mapara, learned advocate appearing for Shri V.H.Kanara,
learned advocate appearing on behalf of the petitioner has vehemently
submitted that as such there was no reason to appoint the Court
Commissioner and to prepare the panchnama. It is submitted that as
such the application has been submitted by the original plaintiff to
prepare the panchnama to create the evidence in his favour and to
establish the possession, which is not permissible. It is submitted
that as such even no reasons were assigned by the learned trial Court
while appointing the Court Commissioner to prepare the panchnama.
Therefore, it is requested to admit/allow the present petition.
3. Heard
the learned advocate appearing on behalf of the petitioner and
considered the impugned order as well as the application submitted by
the original plaintiff below Exh.5. It is to be noted that so far as
the possession in favour of the original plaintiff has been admitted
by the defendant by submitting that he was given the power of
attorney and given the possession for the possession of farming
activity only. Thus, the contention on behalf of the petitioner that
the plaintiff has submitted an application to prepare the panchnama
and appoint Court Commissioner to create the evidence to establish
the possession cannot be accepted. As rightly observed by the
learned trial Court with a view to find out the truth and position of
the land in question, when the order as to prepare
the panchnama and appoint Court Commissioner is passed, the learned
trial Court has not committed any error and/or illegality which calls
for interference of this Court in exercise of powers under Article
227 of the Constitution of India. Under the circumstances, there is
no substance in the present petition which deserves to be dismissed
and is, accordingly, dismissed.
(M.R.
Shah, J.)
*menon
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