Madhya Pradesh High Court
Sampat Kumar Pandey vs Ramgopal Pandey on 1 April, 2022
Author: Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 1st OF APRIL, 2022
MISC. PETITION No. 921 of 2019
Between:-
1. SAMPAT KUMAR PANDEY S/O LATE SHRI
RAMSAJEEWAN PANDEY , AGED ABOUT 75 YEARS,
OCCUPATION: AGRICULTURE R/O VILL. DINAPUR
POST SILHARI TAJ AMARPATAN P.S. RAMPUR
BAGHELAN (MADHYA PRADESH)
2. RAM SOHAWAN PANDEY S/O LATE SHRI
RAMSAJEEWAN PANDEY , AGED ABOUT 61 YEARS,
OCCUPATION: AGRICULTURE VILLAGE DINAPUR
POST SILHARI TAH. AMARPATAN PS RAMPUR
BAHELAN (MADHYA PRADESH)
.....PETITIONER
(BY SHRI P.K. MISHRA, ADVOCATE )
AND
1. RAMGOPAL PANDEY S/O LATE SHRI RAMADHAR
PANDEY , AGED ABOUT 62 YEARS, OCCUPATION:
AGRICULTURE R/O VILL . DINAPUR TAH.
AMARPATAN (MADHYA PRADESH)
2. RAMPAL PANDEY S/O LATE SHRI RAMADHAR
PANDEY , AGED ABOUT 57 YEARS, OCCUPATION:
AGRICULTURE VILLAGE DINAPUR TAH.
AMARPATAN (MADHYA PRADESH)
3. BITANIYA PANDEY W/O LATE SHRI RAMNARESH
PANDEY , AGED ABOUT 70 YEARS, GRAM MOHAR
POST KARHI TAH. AMARPATAN (MADHYA
PRADESH)
4. BITTI BAI @ MALTI BAI PANDEY W/O SHRI GURU
PRASAD PANDEY , AGED ABOUT 59 YEARS, GRAM
KAKRA POST KAKRA KARHI TAH. AMARPATAN
(MADHYA PRADESH)
5. STATE OF M.P. THROUGH COLLECTOR DISTT.
SATNA (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT NO.1 BY MS. RANNO RAJAK, ADVOCATE )
T h is petition coming on for admission this day, the court passed the
following:
Signature Not Verified
SAN
ORDER
With the consent of the parties, the matter is finally heard.
Digitally signed by SUSHEEL KUMAR
JHARIYA
Date: 2022.04.06 10:39:33 IST
Challenge in the present petition is being made to an order dated 19.01.2019
passed by the Civil Judge, Class I Amarpatan, whereby an application filed by the
respondents/plaintiffs under Order 26 Rule 9 of C.P.C. has been allowed.
It is argued that the respondent No.1 & 2 have filed a civil suit for partition
and perpetual injunction alleging that the entire land is a Joint Hindu Property and
respondent No.1 & 2 and petitioner Nos. 1 & 2 divided the land in share. The
entire suit land should be divided in equal share which was sold by the
petitioners/defendants. An application under Order 39 Rule 1 & 2 of CPC has also
been filed alongwith the civil suit. The plaintiffs/respondents contended that there is
a approach road adjoining, which is being used by the plaintiffs as a way and the
defendants are trying to raise constructions by drilling pillars in the approach road.
A written statements have been filed by the defendants/respondents in the matter
denying all the allegations stating that there is no approach road from his land and
in fact approach road is available from inside of another Araji, which is being used
by the respondents/plaintiffs. The authorities have ordered for spot inspection and
called a report. The concerning officer visited the spot and found that there was no
approach road from disputed Araji and further approach road available from the
another side. In pursuance to the report submitted by the Patwari, an affidavit was
submitted by one Shri Purshottamdas Pandey wherein they specifically denied the
claim of the respondents/plaintiffs and explained that the approach road to the
respondents/plaintiffs is available from other side, which is clear from Khasra
Panchala for the year 2016 -17.
It is submitted that earlier an application has been filed by the
respondents/plaintiffs before the Tehsildar and the Tehsildar has rejected their
claim. The order passed by the Tehsildar based upon the spot inspection was put
to challenge before the Sub Divisional Officer by filing an appeal, which was
rejected on 26.05.2017. Thereafter, the Additional Commissioner, Rewa has also
affirmed the order of the Sub Divisional Officer. A Revision was filed under
Section 50 of the M.P. Land Revenue Code before the Board of Revenue and
Board of Revenue has held that no legal and proper opportunity was afforded to
Signature Not Verified
SAN the parties and finding that the orders were passed merely on the basis of spot
Digitally signed by SUSHEEL KUMAR
JHARIYA
Date: 2022.04.06 10:39:33 IST
inspection and the same was against the principle of nature justice, has allowed the
Revision vide order dated 07.02.2017 and set aside all the orders passed by the
Tehsildar, Sub Divisional Officer and Additional Commissioner and the matter is
remanded back to the authorities for fresh consideration.
Thereafter, an application under Order 26 Rule 9 of CPC has been filed in
the matter seeking spot inspection with respect to approach road which is in
dispute in the present case. The learned appellate Court after hearing the argument
of both the parties has allowed the application under Order 26 Rule 9 of CPC
directing for spot inspection into the matter and further to submit a report in the
matter by the Commissioner considering the fact that there is strong dispute with
respect to existence of the property, there is no agreed map which has been
produced by either of the parties and for the reasons that as there is a boundary
dispute then the provisions of Order 26 Rule 9 of CPC are clearly attracted and,
therefore, spot inspection is required to be done in the matter.
A coordinate Bench of this Court in the case of of Loknath Gautam vs.
State of M.P. and others, 2018 SCC Online MP 600 has held as under:-
"20. In the considered opinion of this Court, ‘for the purpose
of elucidating facts in respect of any matter in dispute’ means where
the circumstances render it expedient in the interest of justice to do so,
the Court has power, which is discretionary in nature, to appoint
Commissioner for the purpose of ascertaining, to make it clear,
intelligible and ‘to throw light upon the matter in issue’, means the
main dispute as well as the facts leading to the dispute. This course may
be adopted after the examination of the party or parties or suo motu."
Hon'ble Supreme Court in the case of Haryana Waqf Board vs. Shanti
Sarup and others, (2008) 8 SCC 671 has considered the similar aspect of the
matter and has directed to demarcation of the property, which reads 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,
Signature Not Verified
SAN
it was appropriate for the court to direct the investigation by appointing a
Digitally signed by SUSHEEL KUMAR
JHARIYA
Local Commissioner under Order 26 Rule 9 of the CPC.
Date: 2022.04.06 10:39:33 IST
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 unauthorized
possession in respect of the suit land by them as per paragraph 3 of the
plaint. But the only controversy between the parties was regarding
demarcation of the suit land because land of the respondents was adjacent to
the suit land and the application for demarcation filed before the trial court
was wrongly rejected.
6. It is also not in dispute that even before the appellate court, the
appellant-Board had filed an application for appointment of a Local
Commissioner for demarcation of the suit land. In our view, this aspect of the
matter was not at all gone into by the High Court while dismissing the second
appeal summarily. The High Court ought to have considered whether in view
of the nature of dispute and in the facts of the present case, whether the Local
Commissioner should be appointed for the purpose of demarcation in
respect of the suit land."
A Coordinate Bench of this Court in the case of Prembai vs. Ghanshaym
2010 (3) MPLJ 345 has gone to the extent that it is the duty of the Court to
appoint a Commissioner for ascertaining the land in question if there is no agreed
map between the parties and by placing reliance upon the judgment in the case of
Haryana Waqf Board (supra) has held as under:-
"12. On going through the pleadings of plaintiff made in para 2 of his
plaint, this Court finds that specifically it has been pleaded by him that
adjoining to his plot there is an open land and thereafter defendants' house is
in existence. It has been rightly pointed out by learned counsel for the
appellants that the plaintiffs sale-deed (Ex. P/1) in which the description of his
plot has been mentioned, in it also has been so described that on the northern
side there is an open land and thereafter the house of Krishnagopal Mundra is
in existence and, therefore, since plaintiff's own case is that in between his
Signature Not Verified
SAN plot and defendants' house there is an open space, therefore, whether any
Digitally signed by SUSHEEL KUMAR
JHARIYA
cantilever is being projected on the plaintiffs plot or not, this was required to
Date: 2022.04.06 10:39:33 IST
be ascertained by appointing a competent Commissioner by directing him to
examine the spot and to give report as to whether any projection of cantilever
covers any portion of the plaintiff's property or not and similarly whether the
doors, windows and the drains are trying to be opened by the defendants on
the plaintiff's property or not. Since this has not been done, according to me,
the suit of plaintiff for injunction cannot be decreed. In this regard, the
Division Bench decision of Durga Prasad (supra) placed reliance by the
learned counsel for the appellants is quite relevant. There are two more
decisions of Supreme Court on the point and they are Shreepat v. Rajendra
Prasad, 2000 (6) Supreme 389 and Haryana Waqf Board v. Shanti Sarup,
(2008) 8 SCC 671."
In such circumstances, the learned Court below has not committed any error
in allowing the application under Order 26 Rule 9 of CPC because there is already
a dispute that the lands are adjoining and there is no agreed map between the
parties. In such circumstances, no illegality is committed by learned Court below.
This is a petition under Article 227 of the Constitution of India having
supervisory jurisdiction and limited scope of interference as held 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 or 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."
In view of limited scope of interference under Article 227 of the Constitution
of India coupled with the fact that this Court is only required to check that whether
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there is any procedure irregularities which have been committed by learned Court
SAN
Digitally signed by SUSHEEL KUMAR
below. No such irregularities have been committed by the Court below while
JHARIYA
Date: 2022.04.06 10:39:33 IST
passing the impugned order. The order passed by learned Court below is just and
proper and does not call for any interference in the present petition.
Petition sans merits and is accordingly dismissed.
Interim relief, if any, granted stands vacated and the trial Court shall proceed
with the matter.
(VISHAL MISHRA)
JUDGE
sj
Signature Not Verified
SAN
Digitally signed by SUSHEEL KUMAR
JHARIYA
Date: 2022.04.06 10:39:33 IST
