VIJAY Vs. SMT. SANDHYA

JUDGEMENT

(1.) By this petition under Article 226 of the Constitution of India, the petitioners have challenged the order dated 29.6.2016 passed by the IVth Civil Judge Class-I, Indore in COS No.69-A/2015.

(2.) The petitioner has filed a civil suit for declaration and permanent injunction against the respondents/defendants on the ground that House No.112, Gandhi Park, Radio Colony, Indore is the absolute ownership property of the petitioner and respondent No.1's father late Shri Anantnarayan Dongre, Shri Anantnarayan Dongre has executed registered Will on 16.4.2002 by dividing this house in to portions, out of which, the ground floor of the house will go to respondent No.1 and first floor will be divided equally between the petitioner and respondent No.1. It is also mentioned in the Will that the roof of the first floor will be divided equally between the petitioner and the respondent No.1. It is further mentioned in the Will that the rest portion of house will be for common use between the parties. That, Shri Anantnarayan Dongre expired on 4.4.2003 and at the same time the Will executed by him in his lifetime has come in operation. The respondent No.1 has sold his share in property to the respondent Nos.2 & 3 by registered sale deed. After purchase of the property, the respondent Nos. 2 and 3 have constructed wall on the common passage (open passage) and after construction of the wall the same has been covered by shade. It is submitted that, the respondents having no legal right to cover and construct on common passage, and, therefore, after issuing the notice the suit for declaration and permanent injunction has been filed. The suit is resisted by the respondents on various grounds including the submission that there is no encroachment on common passage. Therefore, the petitioner has filed an application under order 26 Rule 9 of the CPC for appointment of the Commissioner for local inspection of the site through civil engineer in the presence of both the parties. The said application has been allowed by the learned trial court by its order dated 24.7.2015 thereby directing the Revenue Inspector of Indore Municipal Corporation, Indore to inspect the spot by demarcation and to file his report. It was also directed the petitioner to provide all the copies of relevant documents regarding the suit house to the commissioner for execution of the commission. That, in spite of issuing various letters to the Commissioner, no steps for execution of the commission has been taken by the Commissioner and, therefore, the trial court has directed the Commissioner to remain present before the court on 3.2.2016. In compliance of the order, the Commissioner has been appointed and he submitted his report on 15.2.2016. According to the petitioner, the Commissioner has submitted false and fabricated report before the trial court thereby specifically mentioned in the report that the alleged commission has been executed by him on 2.2.2016 and he has prepared panchnama on 2.2.2016. This panchnama as well as the report is alleged to be false because on 3.2.2016 when the Commissioner appeared in person before the court he does not disclose this fact that on 2.2.2016 he has already executed the commission. It has also been submitted that, prior to preparation of the panchnama no notice or any opportunity of hearing was given to the petitioner. Being aggrieved with the same report, the petitioner has submitted his objection on 17.2016 before the learned trial court. However, the court below after hearing the parties dismissed the objection application dated 17.3.2016 filed by the petitioner under Order 26 Rule 10 of the CPC. Being aggrieved with that order, the petitioner has filed the present petition.

(3.) Learned counsel for the petitioner has submitted that the court below has erred in dismissing the objection raised by the petitioner against the report submitted by the Commissioner. He submitted that the said panchnama as well as the report is said to be executed or prepared on 2.2.2016. However, the court has directed the Commissioner to appear before the Court on 3.2.2016. If the panchnama is already prepared on 2.2.2016 then this fact should have been disclosed by the Commissioner before the court. However, for the reasons known to him he has not disclosed this fact before the court. He further submitted that, no notice or any opportunity of hearing has been given to the petitioner before preparing the said panchnama. The panchnama, prepared by the Commissioner, does not bear the signature of the petitioner. In such circumstances, the impugned order be set aside.