Full Judgment
Abdul Kadir versus Deepchand Shivhare & Others Writ Petition No.620 ”
6. 2.2013: Shri Raviranjan, learned counsel for the petitioner.
Shri Ghanshyam Sharma, learned counsel for respondent Nos.1 to 3.
Shri S.S.Bisen, learned Government Advocate for respondent No.4 Challenging an interlocutory order dated 17.12.2012 passed by the IV th Civil Judge Class-II Mandla in Civil Suit No.21a/2012, petitioner has field this writ petition.
Petitioner is plaintiff and has filed suit in question for declaration and injunction merely on the ground that respondent/defendants has encroached the land and area belong to petitioner and therefore suit has been filed for removing them from encroached area.
In the suit in question it was the case of petitioner that sale deed has been executed and sale deed in original was taken by a patwari, thereafter it was misplaced by patwari and as the said patwari died, therefore, the sale deed is not traceable, petitioner wanted summoning of the original record with regard to registration of sale deed from the office of Sub-Registrar and the said application having been rejected, this petition is filed challenging the said order.
That apart, two other orders passed one pertaining to taken on record the Commissioner's report and 2 rejecting certain objection of the petitioner and another with regard to impleading a person as party who is said to have purchased the property is also rejected.
Taking me through the documents available on record Shri Raviranjan, learned counsel has tried to emphasize that the prayer made by the petitioner in the three applications have been rejected without due consideration and, therefore, he seeks for interference into the matter.
Shri Ghanshyam Sharma, learned counsel refuted the aforesaid and points out that at this interlocutory stage in a writ petition under Article 227 of the Constitution no interference is called for.
Having heard learned counsel for the parties and on consideration of rival contention, I am of the considered view that this petition has to be allowed in part.
The prayer made for summoning of documents from the office of Sub-Registrar has to be allowed.
It is clear from the material available on record that the original sale deed in question was given by the petitioner to patwari and according to the petitioner the patwari has died and the sale deed is not traceable, in rejecting the said application the learned court below has committed error, which may cause irreparable loss to the petitioner, and, therefore, summoning of registered sale deed is allowed.
3 So far as other two applications pertaining to rejection of certain objection raised with regard to commissioner's report and rejection of the prayer made by petitioner in a proceedings under Order I Rule 10 CPC and for impleading the subsequent purchaser as party, the objection with regard to Commissioner's report is concerned, court has given various reasons for rejecting the same, therefore, further adjudication at this stage in a proceeding under Article 227 of the Constitution is not warranted, if the petitioner has any grievance with regard to the Commissioner's report, he may challenge it after suit was finally decided and on the said ground, at this interlocutory stage, I see no reason to interfere in the matter.
So far as application for impleading the subsequent purchaser is concerned the court has found that the sale made is not with regard to encroached property it is not connected with the disputed area and, therefore, application is rejected.
Even if the area purchased by the subsequent purchaser after recording of evidence is found to be part of the disputed land/area, then also in view of provisions of Section 52 of Transfer of Property Act no prejudice is cause to the petitioner and on such ground, I see no reason to interfere into the matter.
Accordingly, this petition is allowed in part, the order impugned so far as it relates to prayer of petitioner 4 for summoning of record from the office of Sub-registrar Mandal with regard to sale deed in question is concerned court below is directed to summon the record.
So far as other two applications are concerned, I see no reason to interfere in the matter.
Accordingly the petition is disposed of with liberty to the petitioner to raise the grounds with regard to these two applications if required after the suit is finally decided.
(Rajendra Menon) Judge ss/-