Beerval Tyagi vs Ramhet Tyagi

S.K. Gangele, J.—Heard. The petitioner has filed this petition against the order dt. 30.6.2011 (Annexure P/1) passed by the Trial Court, by which the Trial Court appointed the Commissioner to submit report on the following points:-

Earlier also an application was filed for appointment of Commissioner under Order 26 Rule 9 of CPC, that application was dismissed. Against the aforesaid order, the writ petition being W.P. No. 6349/2010 was filed, that was also dismissed by the Division Bench of this Court with the followings directions:-

From perusal of the application, it is clear that the plaintiffs-petitioners want to ascertain the fact that whether the land is being used as passage or not ? And, whether there is a division of land by way of boundaries (merh) or it is a one filed ? There is no prayer in the application in regard to demarcation. In such circumstances, in our opinion, the trial Court has rightly observed that the application has been filed by the plaintiffs-petitioners for the purpose of collection of evidence and the trial Court has not committed any illegality or irregularity in rejecting the application filed under Order 26 Rule 9 CPC.

Consequently, we do not find any merit in this petition. It is hereby dismissed. No order as to costs.

Thereafter, a review petition, R.P. No. 51/2011 was filed. In the Review Petition, the Court passed the following order:-

Learned counsel for the petitioners submits that the petitioner be permitted to withdraw this review petition with a liberty that if the petitioners will file an application for demarcation this order may not come in the way of the petitioners.

Accordingly, this review petition is dismissed as withdrawn with a liberty as prayed.

From the perusal of the order passed in Review Petition, it is clear that the Court granted liberty to the respondents to file an application for demarcation. It does not mean that the Court granted permission to again file an application for appointment of Commissioner. The question of appointment of Commissioner has come of an end due to dismissal of the writ petition by the Division Bench of this Court against the order passed by the Trial Court for refusal to appoint Commissioner.

Counsel for the respondents No. 1 to 3 have argued that the order appointing the Commissioner is in accordance with law. However, in my opinion, the merits of the case at this stage could not be adjudicated because earlier order of refusal to appoint Commissioner has been upheld by the Division Bench of this Court. Hence, the trial Court has committed an error of jurisdiction in passing the order. Consequently, the petition is allowed. The impugned order dt. 30.6.2011 (Annexure P-1) is hereby quashed. No order as to costs.