Shri Gangadhar Mahadu Gajakas Vs. Shantilal Ubhaychand Gandhi and anr. - Court Judgment

Excerpt:
civil procedure code, 1908 - order xxvi rule 10b - commissioner - consent decree - appointment of receiver to take measurements of lands in possession of the plaintiff and the defendant - submission of report by commissioner - objection by plaintiff to the report - not sustainable.; the decree in question is a compromise decree and parties had agreed that the measurement should be done by the dilr. in view of the consent terms, it is not open for the petitioner now to complain about the measurement undertaken by dilr. - - besides that the court has observed that if the petitioner was not satisfied with the measurement undertaken by the court commissioner it was open for him to file a separate suit. 760 owned and possessed by the petitioner as well as gat no. in view of the consent terms, it is not open for the petitioner now to complain about the measurement undertaken by dilr. besides this, the court below has rightly observed that if the petitioner was not satisfied with the measurement done by the dilr, it was open for the petitioner to file a separate suit for appropriate reliefs.a. m. khanwilkar, j. 1. by this writ petition, under article 227 of the constitution of india, the petitioner has challenged the order passed by the civil judge, j. d., malsiras dated 27.7.1989 below ex. 7 in darkhast no. 88 of 1986.2. by the said application, the petitioner, who is the plaintiff, prayed for undertaking measurement of the properties in question by nimtana. this prayer has been rejected by the impugned order. the court below mainly observed that no provision of taking nimtana on court commissioner's report has been brought to the notice of the court. besides that the court has observed that if the petitioner was not satisfied with the measurement undertaken by the court commissioner it was open for him to file a separate suit.3. briefly stated, the petitioner had filed a suit for injunction against the respondents in respect of properties described as gat no. 760 admeasuring 52 acres situated at village natepute, taluka malsiras. the said suit was compromised between the parties by virtue of the consent terms dated 10.10.1984. under the consent terms the parties agreed that measurement in respect of gat no. 760 owned and possessed by the petitioner as well as gat no. 759 owned and possessed by the respondents should be undertaken and parties would erect compound wall as per the said measurement. it appears that pursuant to the said consent decree the dilr was appointed as a court commissioner to undertake the measurement and as per court's order the dilr undertook the measurement and submitted the report. however, the petitioner was dissatisfied with the said report in respect of certain matters and consequently present application in darkhast no. 88 of 1986 came to be filed, which has been rejected by the impugned order.4. after considering the record i find no infirmity in the approach adopted by the court below in rejecting the said application. the first reason indicated by the court below is that no provision of nimtana on commissioner's report is pointed out. even before this court the petitioner has not referred to any specific provision that would enable nimtana on the court commissioner's report. in the circumstances, there is no reason to take a different view in the matter. moreover, the decree in question is a compromise decree and parties had agreed that the measurement should be done by the dilr. in view of the consent terms, it is not open for the petitioner now to complain about the measurement undertaken by dilr. there is no doubt that dilr has acted independently and done a fair job. there may be some areas in which the report submitted by the court commissioner can be criticized, however, that is not enough. besides this, the court below has rightly observed that if the petitioner was not satisfied with the measurement done by the dilr, it was open for the petitioner to file a separate suit for appropriate reliefs. i find no reason to take a different view in the matter.5. mr. mahmane, appearing for the respondents rightly pointed out that the petitioner was making a grievance about the entry effected in mutation entry reported in the year 1957. besides that the petitioner had purchased only 1 acre of land under the sale deed executed in his favour in the year 1963, whereas in the consolidation scheme the petitioner has been allotted gat no. 760 in view of land originally heldby him and has been provided land admeasuring about 52 ares of land, which is much more than the land which was purchased by him under the sale deed in his favour. taking any view of the matter, the controversy between the parties is only with regard to the measurement and there is no reason to entertain the application for appointment of nimtana on court commissioner's report. it is relevant to note that the order which is under challenge was passed on 27.7.1989, whereas writ petition came to be filed on 2.4.1990. apart from this writ, the petitioner has also raised the self same issue before the collector which application has been rejected by the collector. the petitioner admits that the petitioner has preferred revision before the divisional commissioner and the divisional commissioner was pleased to refuse stay in the said proceeding vide order dated 13.9.1998. taking any view of the matter the present writ petition is devoid of any merits and therefore dismissed with costs.parties to act on the copy of this order duly authenticated by sheristedar of the court.