Madhya Pradesh High Court
Badiya vs Prakash on 24 November, 2021
Author: Rajendra Kumar (Verma)
1 MP-2791-2021
The High Court Of Madhya Pradesh
MP No. 2791 of 2021
(BADIYA AND OTHERS Vs PRAKASH AND OTHERS)
Indore, Dated : 24-11-2021
Shri Nitin Phadke, learned counsel for the petitioners.
The petitioners have filed this petition under Article 227 of
Constitution of India being aggrieved against the impugned order dated
12.08.2021 whereby the trial Court has rejected the application filed by
the petitioners under Order 26 Rule 9 of CPC.
The facts in short are that the plaintiffs/respondents no.1 to 5 filed
a suit for declaration, permanent injunction, partition etc against the
petitioners and other defendants in respect of suit land bearing Survey
No.58 area 4.260 hectares situated at Village Pipliya, Tahsil and District
Jhabua. The defendants have filed their written statement and the trial
Court framed issues. On 15.07.2021, the petitioners/defendants no.1 to 8
filed an application under Order 26 Rule 9 of CPC for appointment of
Commissioner for elucidating the situation prevailing at the spot in
respect of house situated on the land. No reply has been filed by the
respondents to the application filed by the petitioners/defendants.
Learned counsel for the petitioner submits that the learned trial
Court committed grave illegality in rejecting the prayer for appointment
of Commissioner which is not even opposed by the other parties. The
learned trial Court failed to consider that the appointment of
Commissioner was necessary for bringing the situation prevailing at the
spot on record. The learned trial Court mis-interpreted the provisions of
Order 26 Rule 9 of CPC and without considering the factual legal
position rejected the said application. The findings of the trial Court that
the application filed by the petitioners was meant for collecting evidence
is altogether unwarranted and unjustified in the facts and circumstances
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of the case. Hence, prays for setting aside the order dated 12.08.2021 by
imposing cost.
Heard learned counsel for the petitioner and perused the record.
The Hon'ble Supreme Court has also considered the scope
of Order XXVI Rule 9 and held that the provision of Order XXVI Rule 9
is to be invoked if the controversy is regarding demarcation of the land
between the parties. The Apex Court in the matter of Haryana WAQF
Board Vs. Shanti Sarup and Ors. reported in (2008) 8 SCC 671 has
held that if the controversy is regarding demarcation of land between the
parties, the Court should direct the investigation by appointing a
legal Commission.
Para 4 and 5 of the aforesaid judgment is reproduced as
under:-
"4. Admittedly, in this case, an application was filed under
Order 26 Rule 9 of the code of Civil Procedure which was
rejected by the trial Court but in view of the fact that it was a
case of demarcation of the disputed land, it was appropriate
for the Court to direct the investigation by appointing a Local
Commissioner under Order 26 Rule 9, CPC.
5. The appellate Court found that the trial Court did not take
into consideration the pleadings of the parties when there was
no specific denial on the part of the respondents regarding the
allegations of unauthorised possession in respect of the suit
land by them as per Para 3 of the plaint. But the only
controversy between the parties was regarding demarcation of
the suit land because the land of the respondents was adjacent
to the suit land and the application for demarcation filed
before the trial Court was wrongly rejected."
This Court in case of Durga Prasad v/s Parveen Foujdar,
reported in (1975) MPLJ 810 has also considered the scope of
Order XXVI Rule 9 and held that the Court should order the
appointment of Commission when there is a dispute of encroachment.
Again this Court has taken similar view in case of
Jaswant S/o Kashi Ram Yadav v/s Deen Dayal , reported in (2011) 2
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MPLJ 576 has held that duties of the Court to issue a commission by
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appointing an employee of revenue department to get the land
in dispute demarcated and for which no application is
required. Para 10 of the said judgment is reproduced under:-
"€œ10. The moot question to be decided in this appeal
is whether the property in question is of plaintiff or defendant.
Both the parties are claiming ownership right on it. According
to the plaintiff he purchased the land vide registered sale deed
Ext-P-2 from Deen Dayal and the suit property is a piece of
that land but according to the defendant it is part of the property
which he purchased from Sudhir Shrivastava vide registered sale
deed Ext-D-3. According to me, when there is dispute about
demarcation of the property in question and its identity and
both the parties are claiming it to be of their own on the basis
of their document of title it was incumbent upon the Court
itself to issue a commission by appointing an employee of
revenue department not below the rank of Revenue Inspector to
get it demarcated so that it can be identified. In the instant case
my attention has been drawn by learned counsel for defendants
to the application filed under Order XXVI, Rule 9, Civil
Procedure Code but the same has been rejected at the time of
the consideration of temporary injunction application. To me
learned trial Court erred in substantial error of law in rejecting
the said application. The learned First Appellate Court has also
committed the same error by not allowing the said application.
Indeed, it was the duty of the Court itself to issue commission
by appointing an employee of Revenue Department not below
the rank of Revenue Inspector to get the land in dispute
demarcated and for its identification no application is required
for that purpose."
I n view of the law laid down in the above judgments, the
commission can be appointed only in case of demarcation and
encroachment. The issue of possession is to be decided only on the basis
of evidence.
In the present case, as per the petitioners/defendants no.1 to 8 they
are in possession of the land in question and they are cultivating on the
land and have also a house on the suit land. The contention of defendants
no.9 to 12 is that the said house belongs to them.
As it is well settled law, the petitioners/defendants no.1 to 8 are
required to prove their case by giving evidence. They cannot invoke the
provisions of Order 26 Rule 9 of the CPC for collection of evidence.
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They have filed an application under the provisions of Order 26 Rule 9
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of CPC seeking report to the effect that the suit land is of defendants no.1
to 8 and they are cultivating on the land in question. The allegation is
liable to be proved by the petitioners by way of evidence. This is nothing
but misuse of Order 26 Rule 9 of CPC which is not permissible in law.
The trial Court has rightly rejected the application.
Hence, no case for interference is made out in this petition. The
petition is accordingly dismissed.
(RAJENDRA KUMAR (VERMA))
JUDGE
RJ
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