Chattisgarh High Court
Bisheshar @ Bishat (Died) Through ... vs Dr. Girdhari Lal on 27 April, 2022
Page 1 of 3
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Sheet
SA No. 201 of 2012
Bisheshar @ Bishat (died) Through Lrs. Versus Dr. Girdhari Lal
SA/200/2012 and SA/199/2012
27.04.2022 Mr. Sanjay Agrawal, counsel for the appellants.
Mr. Manoj Paranjpe and Mr. Anurag Singh, counsel for the
respective respondents.
Mr. Vimlesh Bajpai, G.A. and Shri Ravi Maheshwari, Panel
Lawyer for the State.
The appellants/plaintiffs have filed the present second appeal
under Section 100 of the C.P.C. challenging the impugned judgment
and decree dated 22.02.2012 passed by Second Additional Sessions
Judge, Mahasamund (C.G.) in Civil Appeal No. 80A/2011 arising out
of judgment and decree dated 14.08.2008 passed by learned Civil
Judge Class-II, Mahasamund, District- Mahasamund (C.G.) in Civil
Suit No. 116A/2005 by which the suit filed by the plaintiffs for grant of
possession and permanent injunction of the land bearing Khasra No.
477/2 has been dismissed.
From bare perusal of the plaint and the judgment passed by
the trial Court, it is clear that there is dispute with regard to
demarcation and boundary of the property, this can be examined by
the Commissioner only. Hon'ble Supreme Court in the case of
Haryana Waqf Board vs. Shanti Sarup and others reported in
(2008) 8 SCC 671 has held that second appeal should not have
been dismissed summarily and Local Commissioner should be
appointed for the purpose of demarcation in respect of the suit land.
Again Hon'ble the Supreme Court in Rahul S. Shah vs. Jinendra
Kumar Gandhi and others reported in (2021) 6 SCC 418 has also
held that though it is a case of execution of decree, but Hon'ble
Supreme Court in exercise of power under Article 142 read with
Article 141 and Article 144 of the Constitution of India has
emphasized for appointment of Commissioner if there is dispute with
regard demarcation of property and the Hon'ble Supreme Court has
held that in appropriate cases, where the possession is not in dispute
and not a question of fact for adjudication before the Court, the Court
may appoint Commissioner to assess the accurate description and
status of the property. In the present case also there is dispute of
demarcation of the property which can only be decided with the help
of Commissioner.
With the consent of the parties, Mr. Ashok Kumar Gupta,
Advocate who is empanelled in the Legal Aid Committee
Mahasamund, is appointed as Commissioner for demarcation of the
suit land.
It is directed that the fee paid to the Commissioner is fixed for
Rs. 25,000/-. Out of which Rs. 10,000/- shall be incurred from the
appellants/ plaintiffs and Rs. 15,000/- shall be incurred from
respective respondents equally.
The Commissioner is directed to submit his report on or
before 25 th June, 2022 in a sealed envelop mentioning the case
number on the envelop. The Commissioner is also directed to issue
notice to the parties for demarcation of the suit land through
registered post with acknowledgement for appearance of the parties
with regard to demarcation of the land.
The Collector, Mahasamund is also directed to provide
assistance to the Commissioner by providing services of Tahsildar
and other revenue officer which are essential for proper demarcation
of the suit land.
Learned counsel for the plaintiffs and the defendants are
directed to provide complete set of proceeding of the trial Court for
perusal of the Commissioner.
A copy of this order be supplied to the Government Advocate
for issuing appropriate direction.
A copy of this order be sent to the Collector, Mahasamund for
compliance.
List this case immediately after submission of the demarcation
report by the Commissioner in the first week of July, 2022.
Sd/-
(Narendra Kumar Vyas)
Judge
Deshmukh
