1. The original plaintiff invoking the provisions of Article 227 of the Constitution of India has challenged the order of dismissal of application Exh.44 made for issuance of commission for measuring and demarcating as regards encroachment alleged to have been made by original defendant Nos.1 and 2 adjacent to plot No.46 admeasuring 29.40 square meters.
2. While entertaining this petition on 23.10.2018, this Court has issued the notice to the respondents. The notice is duly served upon the respondents, but they have chosen to remain absent.
3. This Court has heard Mr.Aadit R.Sanjanwala, learned advocate for Ms.Megha Jani, Page 1 of 3 Downloaded on : Thu Jan 09 00:23:56 IST 2020 C/SCA/16292/2018 ORDER learned advocate for the petitioner. He argued that while considering the application, learned court below misunderstood two cited judgments and in the impugned order, learned court below recorded the finding that since the report of the previous commission has remained unchallenged and without its cancellation, second commission could not be issued as well as application for appointing commission has been made at belated stage.
4. This Court has gone through the Record and Proceedings made available to this Court as well as impugned order passed by the learned Civil Court below the application Exh.44. The application Exh.44 is in the nature of totally innocuous and not injurious to the defendants. Even otherwise also, only authority who is competent to determine as to whether neighbouring plot holder has encroached upon as alleged by the plaintiff is the District Inspector of Lands Record which office is maintaining the record and measurement of the land in question and therefore, in order to establish allegation that defendant Nos.1 and 2 have encroached upon the land admeasuring nearly 29.40 square meters could only be proved by way of filing such opinion and evidence through the District Inspector of Lands Record and that commission is not akin to the previous commission which came to be issued for disclosing the current position of the land in Page 2 of 3 Downloaded on : Thu Jan 09 00:23:56 IST 2020 C/SCA/16292/2018 ORDER question which came to be constituted either by the ministerial staff of the court or advocate. This is quite distinct commission and usually for determining encroachment only. The efficacious mode of locating encroachment is the office of the District Inspector of Lands Record. Learned court below could have allowed such application even though such application is made at belated stage.
5. For the reasons recorded above, the petition is allowed. The impugned order dated 2.4.2018 passed below Exh.44 by learned additional Civil Judge & JMFC, Botad in Regular Civil Suit No.27 of 2010 is quashed and set aside. The application Exh.44 stands allowed.
(R.P.DHOLARIA, J) H.M. PATHAN Page 3 of 3 Downloaded on : Thu Jan 09 00:23:56 IST 2020