Mohammad Rafiq, J. - (1.) THIS writ petition has been filed by Smt. Geeta Devi and Sitaram, challenging the order dated 20.08.2014 passed by the Additional District Judge No. 2, Jhunjhunu, in Civil Suit No. 26/2013 (61/2006 - 40/2009). The court, by aforesaid order, has allowed the application filed by plaintiff -respondent No. 1, for getting the disputed haveli and shop existing in village Tain, Bissau, surveyed from the Archaeological Survey of India so as to determine whether or not the same are more than 200 years old, and directed Archaeological Survey of India, New Delhi, to conduct survey of the aforesaid premise at the cost of the plaintiff -respondent for that purpose.
(2.) AFORESAID application has been filed by plaintiff -respondent in Civil Suit for declaration, partition and permanent injunction against defendant -petitioners as well as non -petitioner No. 2 with the averments that the property in question comprising of a haveli and shop in village Bissau was undivided ancestral property of plaintiff and defendants. The defendant -petitioners were now claiming the same to be their self -acquired property. The defendants filed written statement and admitted therein existence of the haveli and shop but denied other contents. It was maintained by them that property in question was self -acquired property of late Shri Chiranji Lal, husband of defendant -petitioner No. 2. The application was thus opposed by the defendants -petitioners. However, learned trial court has illegally allowed the application by the impugned order. Shri Mahendra Goyal, learned counsel for defendants -petitioners, argued that the trial court has failed to correctly appreciate the provision of Order 26 Rule 9 of the Code of Civil Procedure, which provides for appointment of Commissioner to make local investigation for the purpose of elucidating any matter in dispute. From the material placed on record, it is evident that dispute was whether the property in question was ancestral in which the plaintiff had 1/3rd share and burden of proving the same was on the plaintiff. The plaintiff was required to establish this fact by leading evidence that the property was ancestral one. The provisions under Order 26 Rule 9 CPC could not have been resorted to by the plaintiff to collect the evidence through the Commissioner. The impugned order would reveal that no such satisfaction has been recorded by the trial court that local investigation was requisite for the purpose of elucidating the matter in dispute. The trial court has not appreciated that the matter was at the stage of plaintiff's evidence and at that stage when the evidence of both the parties were not complete, there was no justification for the trial court to entertain the application. If after completion of evidence of the parties, the court were of the view that appointment of Commissioner for local investigation was necessary to elucidate the matter, it could have at that stage invoked the provisions under Order 26 Rule 9 CPC but not during the course of evidence of the parties.
(3.) IT is argued by learned counsel for defendant -petitioners that Archaeological Survey of India, being the Government of India organization, could not have been called upon to carry out the survey of the building in question to determine its age in a private dispute. The Archaeological Survey of India is not meant to carry out any such activity. It is meant to conduct archaeological explorations, excavations, maintenance, conservation and preservation of protected monuments, Archaeological sites and the remains of national importance. Learned counsel for petitioners submitted that whether or not the disputed building was more than 200 years old, is a question of fact, which has to be decided on the basis of evidence led by the parties. Since this was the case set up by the plaintiff, burden lay on him to prove this fact. Learned counsel for defendant -petitioners, in support of his arguments, relied on judgment dated 05.12.2014 of this Court in Union of India (UOI) and Another v. Kripal Industries - : AIR 1998 Raj 224 and Capricorn Life Style Private Limited v. Sunil Kumar - S.B. Civil Writ Petition No. 4652/2013.;