Jagdish Prasad Banchor vs Rakesh Shastri And Ors
2022 Latest Caselaw 1163 Chatt

             HIGH COURT OF CHHATTISGARH, BILASPUR
                                   Order Sheet
                                 SA No. 178 of 2013
             Jagdish Prasad Banchor Versus Rakesh Shastri And Ors.




04.03.2022           Mr. B.P. Sharma, and Ms. Anuja Sharma, Advocates for
               the Appellants.

                     Mr. Ganesh Garg, Advocate for respondent No.1.

Mr. Avinash K. Mishra, GA for the State.

Learned counsel for the respondent No.1 would submit that respondent No.1. has filed the application for obtaining original copy of sale deed which is necessary for recording the evidence before the trial Court. He would further submit that memo of appeal has not been supplied to him.

Let copy of memo of appeal be supplied to the counsel for respondent No.1.

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 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 and again in the case of Rahul S. Shah vs. Jinendra Kumar Gandhi and others (2021) 6 SCC 418 has also held though its 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.

Considering this aspect, list this case after one week.

In the meanwhile, parties shall seek instructions from their clients with regard to the expenditure to be incurred for appointment of Commissioner. The parties may suggest the names for appointment of Commissioner the same shall be considered and if names is not suggested by them then this Court shall appointment the Commissioner empanelled in the Legal Aid Committee at Raipur only.

A copy of this order be supplied to the Government Advocate for issuing appropriate direction.

List this case after two weeks.

Sd/-

(Narendra Kumar Vyas) Judge

Santosh