Madhya Pradesh High Court

Maharshi Ved Vigyan Vishwa Vidya ... vs Smt. Kiran on 3 March, 2022

Author: Vishal Mishra

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         THE HIGH COURT OF MADHYA PRADESH

                        Misc. Petition No.860 of 2021
        (Maharshi Ved Vigyan Vishwavidya Peetham Vs. Smt. Kiran & others)

Jabalpur, Dated : 03.03.2022

      Shri Avinash Zargar, learned counsel for the petitioner.

      Shri V.S.Choudhary, learned counsel for the respondents.

The present petition has been filed challenging the order dated

18.02.2021 passed by the learned Trial Court whereby an application

under Order 26 Rule 9 of Code of Civil Procedure has been rejected.

It is argued that a civil suit was filed by the plaintiff/petitioner

seeking declaration of title and permanent injunction. It is alleged that

an incorrect and illegal demarcation was sought by the respondent

Nos.1 to 4, on the basis of incorrect Patwari Map and Chalusheet.

Defendants by filing a written statement denied all the averments of

the plaint and they have further filed a counter-claim against the

plaintiff/petitioner contending therein that the plaintiff is an

encroacher upon the land in question and defendants are the owner of

the land. In the counter claim, they have claimed the relief of

declaration of title and possession. Thereafter an application under

Order 26 Rule 9 CPC seeking appointment of Commissioner for

demarcation for resolution of the issue of encroachment was filed by

the plaintiff, which was considered and rejected by the learned Trial

Court. It is argued that the law with respect to the appointment of

Commissioner is settled upto the Hon'ble Supreme Court in large

number of judgments wherein it is held that in case there is an

allegation with respect to the encroachment of the property and there

are agreed map between the parties, then it is the duty of the Court to

THE HIGH COURT OF MADHYA PRADESH

Misc. Petition No.860 of 2021 (Maharshi Ved Vigyan Vishwavidya Peetham Vs. Smt. Kiran & others)

appoint a Commissioner for making a local investigation in terms of

Order 26 Rule 9 of CPC. It is argued that in several cases when the

matter is travelled upto the Hon'ble Supreme Court even after

attaining finality upto the Hon'ble High Court in second appeal, there

also the Supreme Court has remanded the matter back for

reconsideration after appointing a Commission in the matter. It is

submitted that the aforesaid aspect was not properly considered by the

learned Trial Court. It is pointed out that there is an interim relief

granted by this Court not to pronounce a final judgment on

24.02.2022 for a period of 15 days from today and the case was listed

for hearing on 03.03.2022. It is submitted that no final judgment is

passed in the matter, but he fairly submits that the entire evidence has

been recorded and only the final judgment is to be pronounced in the

matter before the Trial Court.

Per contra, learned counsel for the respondents Nos. 1 to 4 has

supported the impugned order and has argued that there is material

suppression of facts in the present petition. The petitioner has not

approached the Court with clean hands. It is submitted that in the

revenue proceedings, the demarcation of the property was got done

on the basis of an application filed by the respondents. The aforesaid

order of demarcation was passed on 17.11.2015. The aforesaid order

was never put to challenge by the petitioner. He has participated in

those proceedings and his objections were considered and

subsequently rejected. It is pointed out that the plaintiff's evidence is

THE HIGH COURT OF MADHYA PRADESH

Misc. Petition No.860 of 2021 (Maharshi Ved Vigyan Vishwavidya Peetham Vs. Smt. Kiran & others)

over in the matter and the defendant's evidence is over in the matter

and the case was fixed for final arguments on 13.01.2020, thereafter

the plaintiff petitioner has taken several adjournments which are

reflected in para 9 and 10 and thereafter on 17.12.2020, he has filed

an application under Order 26 Rule 9 of CPC praying for appointment

of a Commissioner in the matter. It is argued that even the

proceedings under Section 250 of M.P.Land Revenue Code were

initiated against the petitioner in which he has duly participated and

final order was passed on those proceedings and in pursuance to the

same, Bedhakali order/warrant dated 13.01.2020 was issued. The

aforesaid facts were not placed before this Court.

It is argued that the petitioner was found to be an encroacher

upon the property in question and the aforesaid order has attained

finality upto the Board of Revenue. The same has not been challenged

by the petitioner at any point of time. The aforesaid aspects were

never brought to the notice of the Court in this Misc. Petition. In the

civil suit pending before the Trial Court only final judgment is to be

passed. The petitioner has actively participated in the proceedings of

the Trial Court and evidence has already been recorded. He has

placed reliance upon the judgment passed by the Court in the case of

Kalpana Lodha Vs. Jitendra Singh and others reported in (2015) 2

WLN 25, Haryana Waqf Board Vs. Shanti Sarup and others

reported in (2008) 8 SCC 671 and Ratan Singh Rawat (D) Vs.

Kamal Singh Rawat, reported in 2018 (1) MPWN 16, Ramanuj

THE HIGH COURT OF MADHYA PRADESH

Misc. Petition No.860 of 2021 (Maharshi Ved Vigyan Vishwavidya Peetham Vs. Smt. Kiran & others)

Kushwaha Vs. Brijbhan Kushwaha reported in I.L.R. (2013) MP

2525, wherein this Coordinate Bench of this Court has refused to

grant an opportunity to cross-examine on an application which has

been filed at a belated stage, considering the fact that the provisions

cannot be used to fill up the lacuna in the matter. It is argued that

several judgments of the Hon'ble Supreme Court are also considered

in the case. He prays for dismissal of the petition.

In rebuttal, counsel appearing for the petitioner has submitted

that the order passed by the Authorities regarding issuance of

Bedhakali warrant was placed before the learned Trial Court and

proceedings have been stayed by the learned Trial Court. In such

circumstances, at least an opportunity for appointment of

Commissioner should be granted.

Heard the learned counsel for the parties and perused the

record.

From the perusal of the record, it is clear that the petitioner is

found to be an encroacher by the Revenue Authorities and the order

on the proceedings under Section 248 of MP Land Revenue Code has

attained finality and on the basis of which the Bedhakali warrant has

been issued. Although the execution of the same has been stayed by

the learned Trial Court, but the fact remains that the petitioner is an

encroacher as there is no challenge to the order passed on the

proceedings under Section 248 of M.P.Land Revenue Code. Even the

demarcation of the land has already been done in the year 2015

THE HIGH COURT OF MADHYA PRADESH

Misc. Petition No.860 of 2021 (Maharshi Ved Vigyan Vishwavidya Peetham Vs. Smt. Kiran & others)

wherein the petitioner's objections were considered but the petitioner

has not chosen to challenge that order in any proceedings. It is further

admitted that in the civil suit the proceedings are already over, the

evidences are already being recorded, the petitioner's counsel

appeared and has cross-examined in the civil suit and the civil suit

was listed for final arguments on 13.01.2020 but the

plaintiff/petitioner has taken several adjournments to argue the matter

and it is only in the month of December, 2020 he has filed an

application under Order 26 Rule 9 CPC for appointment of

Commission. It is admitted that the learned Trial Court has considered

all the aforesaid aspects of the case and has rejected the application.

There is no dispute with respect to boundaries or the map in question,

but the fact remains that the petitioner is an encroacher on the

property which is held by the Revenue Authorities and proceedings

under Section 248. In such circumstances, appointing a

Commissioner at the fag end of the Civil Suit in which judgment is

required to be pronounced cannot be permitted just to fill up the

lacuna. There is no document filed by the plaintiff/petitioner showing

the factum of boundary dispute for any allegation regarding agreed

map. It is the defendants who have taken a stand that the petitioner is

an encroacher upon their land for which he has also preferred a

counter claim. The law with respect to appointment of Commissioner

is settled in the case of Haryana Waqf Board Vs. Shanti Sarup and

others reported in (2008) 8 SCC 671.

THE HIGH COURT OF MADHYA PRADESH

Misc. Petition No.860 of 2021 (Maharshi Ved Vigyan Vishwavidya Peetham Vs. Smt. Kiran & others)

In such circumstances, this is a petition under Article 226 of the

Constitution of India wherein this Court has exercised supervisory

jurisdiction having very limited scope of interference as has been 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."

Considering the overall facts and circumstances of the case and

also the fact that the petitioner has not approached this Court with

clean hands and has not placed before this Court all the facts that is

the order passed by the Revenue Authorities declaring him to be an

encroacher and the demarcation proceedings which have attained

finality in the year 2015 as the same was not put to challenge by the

petitioner, coupled with the fact that the civil suit is at the verge of

end and only final judgment is required to be pronounced, only due to

the pendency of the present petition before this Court, no final

judgment could be pronounced by the learned Trial Court.

In such circumstances, there are no merits in the petition. The

THE HIGH COURT OF MADHYA PRADESH