Madhya Pradesh High Court
Jagdish Agrawal vs Shyam Kumar Tiwari on 23 April, 2022
Author: Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 23rd OF APRIL, 2022
MISC. PETITION No. 3585 of 2019
Between:-
1. JAGDISH AGRAWAL S/O LATE SITARAM
AGRAWAL , AGED ABOUT 56 YEARS,
OCCUPATION: BUSINESSMAN R/O. NEHRU ROAD
SEONI (MADHYA PRADESH)
2. PRADEEP AGRAWAL S/O LATE SITARAM
AGRAWAL , AGED ABOUT 49 YEARS,
OCCUPATION: BUSINESSMAN R/O NEHRU ROAD
SEONI (MADHYA PRADESH)
.....PETITIONER
(BY SHRI A.K SHUKLA, ADVOCATE)
AND
1. SHYAM KUMAR TIWARI S/O ANTA PRASAD , AGED
ABOUT 68 YEARS, R/O. DOONDASEONI TIGADDA
KABIR WARD SEONI (MADHYA PRADESH)
2. VIDHYADHAR S/O SHYAM KUMAR TIWARI , AGED
ABOUT 42 YEARS, R/O DOONDASEONI TIGADDA,
KABIR WARD SEONI (MADHYA PRADESH)
3. STATE OF MADHYA PRADESH THR. COLLECTOR
DISTT-SEONI (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI A.K PANDEY, ADVOCATE)
(BY SHRI SUDEEP CHATARJEE, GOVERNMENT ADVOCATE)
T h is petition coming on for admission this day, the court passed the
following:
ORDER
The present petition is being filed challenging the order dated 05/04/2019
passed by the 1st Civil Judge, Class-II, District Seoni, whereby, the application
filed by the petitioners under Order 26 Rule 9 of C.P.C has been rejected.
It is argued that the petitioners have filed a civil suit for permanent injunction
and possession of the suit property against the respondent No.1 & 2 contending
that the suit land was sold by the respondents No.1 and 2 by father of petitioners.
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The written statement has been filed in the matter denying all the contention. The
issued were framed by the learned trial Court, thereafter, an application was filed
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under Order 26 Rule 9 of C.P.C seeking appointment of Commissioner for sport
inspection alleging there that there is an encroachment over the plot No.138 excess
the land sold to them of Plot No.137. It is argued that there is boundary dispute
between the parties. By filling of reply respondent No.1 & 2 has contended that
there is dispute of area with respect to Plot No.138 and the same can be decided
by the Revenue Authorities. There is no requirement of appointment of
Commissioner in the matter, the same will amount to collection of evidence. The
petitioner has having a remedy of filling approaching the Revenue Authorities by
filling an application for demarcation of the plot in question. It is argued that the
appointment of Commissioner cannot be made for collection of evidence.
Per contra counsel appearing for the State as well as respondent have
opposed the contentions and have supported the order pointing out the fact that
there is no boundary dispute. In such circumstance, there is no illegality committed
by leaned trial Court in rejecting an application.
Heard the learned counsel for the parties and perused the record.
From the perusal of record, it is not disputed the civil suit has been filed
seeking declaration and permanent injunction wherein the after filling of written
statement the issued has been framed by the learned trial Court. Thereafter, an
application under Order 26 Rule 9 of C.P.C was filed alleging therein that there is
an encroachment made by the defendants over the property of the petitioner which
can be ascertained by allowing the application and directing the spot for inspection
by the Commissioner. The petitioner can always filed an application before the
Revenue Authorities for demarcation of plot in question and demarcation report
will ascertained that how much area has been encroached upon by the respondents
in the matter. The civil suit at the stage of recording of evidence of the plaintiff and
calling for the Commissioner report would be amounting to collection of evidence.
It is a settled proposition of law that the appointment of the Commissioner
cannot be done for collection of the evidence. It is to be established by leading
cogent evidence by both the parties.
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In such circumstances, there is no illegality committed by the learned trial
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court in rejecting the application. A coordinate Bench of this Court in the case of
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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
'issue 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."
The 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, it was appropriate
for the court to direct the investigation by appointing a Local Commissioner under
Order 26 Rule 9 of the 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 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."
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A Coordinate Bench of this Court in the case of Prembai vs. Ghanshaym
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2010 (3) MPLJ 345 has gone to the extent that it is the duty of the Court to
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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 plot and
defendants' house there is an open space, therefore, whether any cantilever is being
projected on the plaintiffs plot or not, this was required to 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."
This 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:-
"T h e 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
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correcting error of facts and law in a routine manner."
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In view of limited scope of interference under Article 227 of the Constitution
of India coupled with the fact that the order passed by learned Court below is just
and proper does not call for any interference in the present petition.
Petition sans merits and is accordingly dismissed.
VISHAL MISHRA)
JUDGE
Prar
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Digitally signed by PRARTHANA
SURYAVANSHI
Date: 2022.04.29 14:17:43 IST
