Ganesh Ram Kori vs Smt. Narmada Kori
2021 Latest Caselaw 7753 MP

                                                                        1                                MP-3780-2021
                                       The High Court Of Madhya Pradesh
                                                 MP No. 3780 of 2021
                                                     (GANESH RAM KORI Vs SMT. NARMADA KORI)

                         1
                         Jabalpur, Dated : 24-11-2021
                                 Shri Aman Chourasia, Advocate for the petitioner.
                                 None for the respondent.

Heard on the question of admission.

The present petition under Article 227 of the Constitution of India has been filed challenging the order dated 17.08.2021 passed by the Fourth Civil Judge Class-II,

Sagar, District-Sagar; whereby, the application filed by the petitioner under Order 26 Rule 9 of C.P.C. has been dismissed.

It is submitted that plaintiff/petitioner has preferred a Civil Suit for restoration of possession over the encroached land/corridor, situated at Plot No.145/20 area being 3x13=39 square feet out of total land of 740 square feet belonging to the petitioner. It is alleged that Smt. Kiranlata Chouda executed a sale-deed in favour of Laxminarayan Ladiya on 02.09.2003. Laxminarayan executed a registered sale deed in favour of petitioner on 09.03.2004 and in favour of respondent on 04.10.2004. On the basis of sale-deeds, their names have been mutated in the revenue records. The respondent has

encroached upon a piece of land belonging to the petitioner, therefore, the controversy has arose giving rise to the present litigation. The petitioner as well respondent are real siblings. The respondent/defendant has encroached upon 3x13 square feet land/corridor which belongs to the petitioner. Written statement was filed denying all the averments of the plaint and contending therein that the construction has raised on their land and no encroachment is being made on the land of the plaintiff/petitioner.

Thereafter, an application under Order 26 Rule 9 of C.P.C.was filed seeking a direction for demarcation of the property so that the encroachment may be clearly pointed out. The aforesaid application was considered by this Court vide impugned order dated 17.08.2021 and the application was rejected on the ground that there is no boundary dispute between the parties and the alleged encroachment is required to be Signature Not Verified SAN proved by leading cogent evidence. He has placed reliance upon the judgment passed

Digitally signed by MOHD IRFAN SIDDIQUI Date: 2021.11.30 10:53:30 IST 2 MP-3780-2021 by the Supreme Court in the case of Haryana Waqf Board Vs. Shanti Sarup and others, reported in (2008) 8 SCC 671; wherein, in similar circumstances the Hon'ble Supreme Court has allowed the application under Order 26 Rule 9 of C.P.C. Placing further reliance upon the judgments passed in M.P. No.1140/2017 (Rakesh Kumar Dubey & others vs. State of M.P., decided on 19.02.2018 , he has prayed for similar relief being extended to them.

Heard learned counsels for the parties and perused the record. From perusal of the record, it is an admitted position that the Civil Suit for recovery of possession was filed by virtue of sale-deeds executed in favour of the plaintiff as well as defendant by one Laxminarayan. They have got entered their name into the revenue records. From the record, it is seen that the plaintiff has alleged that some encroachment is being made by the defendant on their part of land which belongs to the plaintiff which was specifically denied by the defendant in their written statement. It is not a case where the boundary dispute is alleged between the parties or there is no agreed map. Rather, both plaintiff as well as defendant are claiming their right over the property in dispute by virtue of sale-deeds.

The provisions of under Order 26 Rule 9 of C.P.C. are required to be seen:-

Order 26, Rule 9: Commissions to make local investigations:-- "In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court.

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.

From the perusal of the aforesaid, it is seen that the Commission can only be directed where there is boundary dispute. In the present case, there is no dispute with respect to the boundaries of the alleged property rather there is a specific case of the Signature Not Verified SAN

plaintiff that the property belonging to the plaintiff is been encroached upon by the Digitally signed by MOHD IRFAN SIDDIQUI Date: 2021.11.30 10:53:30 IST 3 MP-3780-2021

defendant. In such circumstances, the learned trial Court has not committed any error in rejecting the application under Order 26 Rule 9 of C.P.C. as the same will amount to collecting of evidence.

The provisions of Order 26 Rule 9 of C.P.C. cannot be used for collecting the evidence. The encroachment as alleged by the plaintiff is required to be established by him by leading the cogent evidence. The learned trial Court has considered the aforesaid aspects and has rightly rejected the application. This is the petition under article 227 of Constitution of India, wherein this Court in exercising the supervisory jurisdiction a very limited scope of interference is available to this Court specially in the light of the judgement passed by the Hon'™ble Supreme Court in the case of Shalini Shyam Shetty Vs. Rajendra Shhankar Patil reported in (2010) 8 SCC

329, wherein certain guidelines have been issued by the Supreme Court, which are as under :-

"The scope of interference under Article 227 of the Constitution is limited. If order is shown to be passed by a Court having no jurisdiction, it suffers from manifest procedural impropriety o r perversity, interference can be made. Interference is made to ensure that Courts below act within the bounds of their authority. Another view is possible, is not a ground for interference. Interference can be made sparingly for the said purpose and not for correcting error of facts and law in a routine manner."

Considering the overall facts and circumstances of the case and also the law laid down by the Hon'ble Supreme Court and considering the provisions of under Order 26 Rule 9 of C.P.C., no illegality is committed by the trial Court in rejecting the application under Order 26 Rule 9 of C.P.C.

The petition sans merits and is accordingly dismissed.

(VISHAL MISHRA) JUDGE

irfan

Signature Not Verified SAN

Digitally signed by MOHD IRFAN SIDDIQUI Date: 2021.11.30 10:53:30 IST