Madhya Pradesh High Court
Ajay Kumar Gautam vs Ku. Ashu Sah on 27 July, 2022
Author: Virender Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIRENDER SINGH
ON THE 27th OF JULY, 2022
MISC. PETITION No. 2571 of 2019
Between:-
1. AJAY KUMAR GAUTAM S/O LATE VIJAY
KUMAR GAUTAM, AGED ABOUT 30 YEARS,
OCCUPATION: THR. POWER OF ATTORNEY
HOLDER RAJKUMAR TRIPATHI S/O LATE
BHAGWAT PRASAD TRIPATHI R/O GURUNANAK
WARD NEAR JUNGLE OFFICE KATNI TEH. AND
DISTT. KATNI M.P. (MADHYA PRADESH)
2. ABHAY KUMAR GAUTAM S/O LATE VIJAY
KUMAR GAUTAM, AGED ABOUT 28 YEARS,
OCCUPATION: THR. POWER OF ATTORNEY
HOLDER RAJKUMAR TRIPATHI S/O LATE
BHAGWAT PRASAD TRIPATHI, R/O
GURUNANAK WARD, NEAR JUNGLE OFFICE
KATNI TAHSIL AND DISTT KATNI R/O
MASURAHA WARD, PURANI BASTI KATNI
(MADHYA PRADESH)
3. SMT. SUSHEELA GAUTAM W/O LATE VIJAY
KUMAR GAUTAM, AGED ABOUT 50 YEARS,
OCCUPATION: THR. POWER OF ATTORNEY
HOLDER RAJKUMAR TRIPATHI S/O LATE
BHAGWAT PRASAD TRIPATHI, R/O
GURUNANAK WARD, NEAR JUNGLE OFFICE
KATNI TAHSIL AND DISTT KATNI R/O
MASURAHA WARD, PURANI BASTI KATNI
(MADHYA PRADESH)
4. SMT. ANJALI PAROHA W/O SATYENDRA
PAROHA D/O LATE VIJAY KUMAR GAUTAM,
AGED ABOUT 26 YEARS, OCCUPATION: THR.
POWER OF ATTORNEY HOLDER RAJKUMAR
TRIPATHI S/O LATE BHAGWAT PRASAD
TRIPATHI, R/O GURUNANAK WARD, NEAR
JUNGLE OFFICE KATNI TAHSIL AND DISTT
KATNI R/O HOUSE NO.1816, WRIGHT TOWN,
NEAR MULE TYPING JABALPUR (MADHYA
PRADESH)
.....PETITIONERS
(BY SHRI DEVDATT BHAVE, ADVOCATE)
Signature Not Verified
Signed by: APARNA TIWARI
Signing time: 8/1/2022
3:37:36 PM
2
AND
1. KU. ASHU SAH D/O DAYASHANKAR SAH, AGED
ABOUT 10 YEARS, OCCUPATION: MINOR R/O
INDUSTRIAL AREA KATNI TEH. AND DISTT.
KATNI M.P. (MADHYA PRADESH)
2. MST. UTKARSH S/O DAYASHANKAR SAH, AGED
ABOUT 5 YEARS, OCCUPATION: THR. NATURAL
GUARDIAN GRANDMOTHER SMT. ASHA GUPTA
W/O SHRI BHARAT PRASAD GUPTA R/O
INDUSTRIAL AREA, KATNI TAHSIL AND DISTT
KATNI (MADHYA PRADESH)
3. SMT. SANDHYA GAUTAM W/O LATE SHARAD
GAUTAM, AGED ABOUT 39 YEARS, R/O
MASURAHA WARD, PURANI BASTI KATNI
(MADHYA PRADESH)
4. DUBEY CONSTRUCTION COMPANY
PARTNERSHIP FIRM THR. PARTNER ABHAY
DUBEY S/O KRISHNA KUMAR DUBEY R/O 4,
GANGA NAGAR, GARHA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI R.K. SANGHI, ADVOCATE FOR RESPONDENT NO.4)
Th is petition coming on for hearing this day, th e court passed the
following:
ORDER
The petitioner has assailed order dated 07.03.2019 passed in Civil Suit
No.80-A/13 by Vth Civil Judge, Class-II, Katni, whereby the application filed by
the petitioner under Order 26 Rule 9 CPC has been dismissed by the trial Court,
observing that it was filed at the fag end of the suit when it was fixed for final
argument on merits and that for demarcation of disputed plot i.e. plot No.12
commission, does not appear necessary. Further it was observed that
commission cannot be issued for the sole purpose of collecting evidence. For
the delay, learned trial Court referred to the Rule 264 of Madhya Pradesh
Civil Nyayalaya Niyam, 1961 which prescribes that such an application for
Signature Not Verified
Signed by: APARNA TIWARI
Signing time: 8/1/2022
3:37:36 PM
commission should be preferred at the earliest or at the first available
opportunity.
2. Relevant facts to decide this petition are that the predecessor of
petitioners Vijay Kumar Gautam (father of petitioner Nos.1, 2 and 4 and
husband of petitioner No.3) was owner of land bearing Khasara No.274/6,
275/1-cha, 275/2-cha, 276/1-kha and 276/2 situated in Maharana Pratap Ward,
Katni. Patwari Halka 3/29 Revenue Circle Mudwara. He entered into an
agreement with respondent No.4 for development of a colony on this land.
Some other adjacent land owners also entered into same type of agreements
with respondent No.4 to develop a colony. All the land of different owners was
merged and a lay-out plan was got sanctioned for the colony. Colony was
developed. The land was divided into plots and sold out to several persons.
Several houses were built on the land and this all happened from the year, 2004
to 2008. After the death of Vijay Kumar Gautam, his sons and wife filed a civil
suit to get the agreement of development of colony cancelled, which is pending
consideration. Meanwhile, the petitioners also filed a civil suit that plot No.125
sold in the year 2008, falls in the land of their ownership while it has been sold
by respondent No.4 showing it to be a part of some other land. The suit was
proceeded and after recording evidence of both the parties was fixed for final
argument. At that stage, the petitioners come with an application for a
commission which has been rejected by the trial Court as stated above.
3. Learned counsel for the respondent referred to the delay in filing the
application as well as pointed out the current status of the land mentioned
above. He also referred to some reports of Revenue Officers placed on record
as R-4/5, R-4/6 and R-4/7 wherein, in identical situation, developed as a colony
and houses are built thereon, the revenue officer expressed their inability to
Signature Not Verified
Signed by: APARNA TIWARI
Signing time: 8/1/2022
3:37:36 PM
demarcate any plot on the basis of Khasra numbers or the revenue records.
4. Learned counsel for the petitioner insisted upon that there is no delay
in filing the application, such an application may be filed at any stage. He
referred to judgment of this Court passed in Jaswant Vs. Deen Dayal reported
in SCC online 2011 (2) M.P.L.J. 576 Ramavtar Vs. Shiv Bhajan reported
in ILR (2015) M.P. 2560 (para-4). He further referred to Kashiram Vs.
Rameshwar reported in (2017) 3 M.P.L.J. 226.
5. I have considered rival submission of the parties and have perused the
record.
6 . It is true that application under Order 26 Rule 9 may be filed at any
stage, but Rule 264 (supra) prescribes that it should be filed at the first available
opportunity and the petitioner has come with no explanation as to why there
was such a delay in filing the application. The facts mentioned in Ramavtar case
are different from the fact of the case in hand and further provisions of Rule
264 has not been considered in that judgment. Similar is the situation with the
other judgment relied upon by the petitioner. They do not deal with the facts or
cannot be applied in the facts and circumstances of the present case.
7. In the present case, it is not in dispute that the agreement to develop
the colony was executed in the year, 2004 thereafter lay-out of colony got
sanctioned, plots were sold and houses are built on this land and this all have
been done much prior to the agitation of the issue by the petitioner. The colony
has been developed after merging revenue land of several owners including the
predecessor of the petitioners. It was got diverted also and, therefore, it is very
difficult to identify the land as per their survey numbers. This Court is also
agree with the observation of the trial Court that at that stage of the suit, no
Signature Not Verified
Signed by: APARNA TIWARI
Signing time: 8/1/2022
3:37:36 PM
party can be permitted to collect evidence by using the machinery of the Court
and when the trial Court is not finding it difficult to adjudicate the dispute
between the parties on the basis of the evidence placed on record and available
before it, there appears no need to issue any commission.
8 . For all these reasons, this Court does not find any incorrectness,
illegality or perversity in the order of the trial Court. No ground for interference
is made out, therefore, the petition is dismissed.
9. Pending I.As, if any, are stand closed.
(VIRENDER SINGH)
JUDGE
AT
Signature Not Verified
Signed by: APARNA TIWARI
Signing time: 8/1/2022
3:37:36 PM
