Tarachand vs Narain and Others

R.S. Chauhan, J.—The petitioner is aggrieved by order dated 5.4.2014 passed by Addl. Civil Judge (Sr. Div.) cum Addl. Chief Judicial Magistrate, Dantaramgarh, District Sikar, whereby the learned Magistrate has rejected the petitioner''s application for summoning the factual report from the Tehsildar Dantaramgarh with regard to the property in dispute.

The brief facts of the case are that the petitioner-plaintiff filed a suit for permanent injunction along with an application for temporary injunction seeking relief that the respondent-defendants may be restrained from using and trying to possess the guwadi. During pendency of the proceedings, the petitioner filed an application for appointment of a Commissioner, which was dismissed by order dated 28.2.2014. Thereafter another application was filed for summoning the factual position of the site. The respondent-defendants contested the application. After hearing the arguments, by order dated 5.4.2014 the learned trial court rejected the application. Hence, this petition before this Court.

Mr. Naruka, the learned counsel for the petitioner, has contended that earlier the petitioner had moved an application for appointment of a Commissioner which was duly rejected by the order dated 28.2.2014. However, in reply to the application filed by him the respondents had agreed that the report of the Patwari should be called for. Despite such a concession being made by the respondent-defendants, the learned Magistrate has still rejected the application filed by the petitioner by the impugned order. Therefore, the impugned order deserves to be set aside.

Heard the learned counsel for the petitioner and perused the impugned order.

According to Section 101 of the Evidence Act the burden of proof lies on the party to establish the existence of the assertion made by him/her. It is, indeed, a settled position of law that neither a Commissioner report can be called for, nor a report of a third person, in order to create evidence in favour of a party. In case the petitioner, as a plaintiff, claims that he is in possession of the property in dispute, that the respondent-defendants are encroaching upon the same, it is for the petitioner-plaintiff to prove these facts by cogent evidence produced by him. Therefore, the learned Magistrate was justified in concluding that a factual report cannot be called for even if the respondent-defendants have conceded to the same. After all the petitioner-plaintiff must stand on his own two legs and establish his case by preponderance of evidence.

For the reasons stated above this Court does not find any illegality or perversity in the impugned order. This petition being devoid of any merit, is hereby dismissed. Since the writ petition has been dismissed, the stay application too, stands dismissed.