Madhya Pradesh High Court
Rajbali Singh vs Pancholi Kol on 11 March, 2022
Author: Arun Kumar Sharma
1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
ON THE 11th OF MARCH, 2022
MISC. PETITION No. 5767 of 2018
Between:-
RAJBALI SINGH S/O SHRI MANOHAR SINGH ,
AGED ABOUT 56 YEARS, OCCUPATION: SERVICE
AND AGRICULTURE VILLAGE MAVAI POST
MAVAI TEHSIL CHURHAT DISTT. SIDHI (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI A.S. BAGHEL, ADVOCATE)
AND
1. PANCHOLI KOL S/O LATE SHRI SUKHDEO KOL ,
AGED ABOUT 77 YEARS, OCCUPATION:
AGRICULTURE VILLAGE MAVAI POST MAVAI
TEHSIL CHURHAT DISTT. SIDHI (MADHYA
PRADESH)
2. VANSHBAHOR KOL S/O SHRI PANCHOLI KOL ,
AGED ABOUT 58 YEARS, OCCUPATION:
AGRICULTURE VILLAGE MAVAI POST MAVAI
TEHSIL CHURHAT DISTT. SIDHI (MADHYA
PRADESH)
3. STATE OF M.P. THROUGH COLLECTOR DISTT.
SIDHI (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI A.K. SHRIVASTAVA, ADVOCATE FOR THE RESPONDENTS.
MS. PAPIYA GHOSH, PANEL LAWYER FOR STATE. )
This petition is coming on for admission this day, the court passed the
following:
ORDER
By the instant petition filed under Article 227 of the Constitution of India, the
petitioner/plaintiff is assailing the order dated 30/10/2018 (Annexure-P/6) passed
by IIIrd Civil Judge Class-2, Churhat, District-Sidhi (M.P.) in RCSA Case No.
110/2017, whereby application moved by the petitioner/plaintiff under Order 26
Rule 9 of C.P.C. for appointment of commission to make local investigation has
been rejected.
2. Brief facts of the case are that the petitioner had filed suit on 24/10/2017,
bearing registration number RCSA No.110/2017 (Annexure P/1) for declaration of
title and permanent injuction in respect of suit land bearing Khasra No. 779 area
0.050 hectares and Khasra No. 780 area 0.020 hectare situated at village Mavai,
Teh. Churhat, District-Sidhi (M.P.), wherein paragraph 8 of the plaint, it was
specifically alleged that residential house of respondents /defendants No. 1 and 2
exist over Khasra Number 742, which exist eastern side of road; whereas land
belonging to the petitioner/plaintiff i.e. Khasra Numbers 779 and 780 exist in
western side of road and no house is constructed over the lands belong to
petitioner. The respondents/defendants 1 and 2 had filed written statement
(Annexure P/2) and asserted in paragraph 8 of written statement that their
residential house is constructed over Khasra Numbers 779 and 780 . It is averred in
the suit that with respect that Khasra Numbers were created from old Khasra
Number 768, which includes the lands of the petitioner and respondents during
current settlement. Present suit is outcome of mistake in preparation of map
committed during settlement. Looking to the said controversy, the
petitioner/plaintiff had moved an application under Order 26 Rule 9 of C.P.C.
(Annexure P/4) for appointment of Commission to make local investigation.
Respondents/defendants had filed reply (Annexure P/5) to the application and
opposed the prayer for appointment of commission to make local investigation.
However, the trial Court vide order dated 30/10/2018 (Annexure P/6) rejected the
application of the petitioner holding that the petitioner/plaintiff had neither
produced any documents regarding identity of the suit property nor filed any
documents regarding encroachment alleged to have been committed by the
respondents/defendants. Being aggrieved with the said order, the petitioner/plaintiff
preferred the present petition.
3. Learned counsel for the petitioner submits that if there is any dispute for the
demarcation of the land between the plaintiff and defendants the said controversy
can be settled by appointing local Commissioner under Order 26 Rule 9 CPC. In
support of his contention, he has placed reliance upon the judgments of this Court
in the case of Shreepat Vs. Rajendra Prasad reported in 2000(7) JT 379,
Durga Prasad Vs. Praveen Foujdar & Others reported in 1975 JLJ 440,
Prembai Vs. Ghanshyam, (2010) 3 MPLJ 345 and Kamal Singh Vs. Roop
Singh, (2011) 3 MPLJ 333 (M.P.).
4. On the other hand, learned counsel for the respondents/defendants have
opposed the prayer and prayed for dismissal of the petition.
5. In the present case the dispute between the parties relating to area,
boundary of land and the encroachment made in part area of the suit lands.
6. The provisions of Order XXVI Rule 9 of the CPC are very clear and
for the ready reference the same is reproduced below :-
"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."
7. It is clear from the above if during pendency of the trial and before the
judgment, the Trial Court finds that any issue required clarification or elucidation,
the Court may appoint Commissioner to submit the report for which no application
is required.
8. The scope of Order 26 Rule 9 of the CPC is very limited. The Trial
Court in any suit in which a local investigation is required or proper for purpose of
elucidating any matter of dispute may appoint a Commissioner. It is settled law that
the parties are required to prove their case by way of evidence, therefore, it is the
duty of plaintiff/defendant to first give evidence in support of their case. After the
evidence of parties, if Court deem it proper that any issue is required to be
elucidate or explained or clarified then the Court may appoint a Commissioner.
The report of Commissioner is merely a piece of evidence and not binding on the
Trial Court. It can be used for the purpose of appreciating the evidence came on
record.
9. The Order XXVI Rule 9 of the CPC provides that :- "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, may issue a
commissionÂÂÂ. The language of Order XXVI Rule 9 is very plain and simple,
according to which, if any court deems it proper to appoint a commission for the
purpose of clarification of any issue in dispute, may appoint a commission. That any
clarification requires only after the evidences are produced by both the parties. The
parties in suit must prove their case by way of evidence and if the court wants that any
issue or matter in dispute requires any clarification or elucidation it may appoint a
commission. The plaintiffs and defendants have to stand on their lags as they have to
prove their case by way of evidence and if thereafter any issue is required to be
clarified then either of them may file an application or court may suo moto appoint a
commissionÂÂ. The important is that at which stage application under Order XXVI
Rule 9 of the CPC is required to be filed in the suit."
10. The Hon'ble Supreme Court has also considered the scope of Order
XXVI Rule 9 and held that the provision of Order XXVI Rule 9 is to be invoked if
the controversy is regarding demarcation of the land between the parties.
11. The Hon'ble Supreme Court in the matter of Haryana WAQF Board
v/s Shanti Sarup and Ors., reported in (2008) 8 SCC 671, has held that if the
controversy is regarding demarcation of the land between the parties, the Court
should direct the investigation by appointing a legal Commission.
Para 4 and 5 of the aforesaid judgment is reproduced as under :-
"œ4. 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,
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 unauthorised possession in respect of the suit
land by them as per Para 3 of the plaint. But the only controversy between the parties
was regarding demarcation of the suit land because the land of the respondents was
adjacent to the suit land and the application for demarcation filed before the trial
Court was wrongly rejected."
12. This Court in case of Durga Prasad v/s Parveen Foujdar, reported
in (1975) MPLJ 810 has also considered the scope of Order XXVI Rule 9 and
held that the Court should order the appointment of Commission when there is a
dispute of encroachment. Para 25 of the said judgment is reproduced as under :
"25. Point No.2: In cases where there is a dispute as to encroachment, the fact
whether there is such an encroachment or not cannot be determined in the absence of
an agreed map, except by the appointment of a Commissioner under Order 26, Rule 9
of the Code of Civil Procedure. On 15.09.1966 the plaintiff, accordingly, applied for
the issue of a commission to the Director of Land Records for a theodolite survey of the
plaintiff's leasehold area."
13. Again this Court has taken similar view in case of Jaswant S/o Kashi
Ram Yadav v/s Deen Dayal, reported in (2011) 2 MPLJ 576 has held that
duties of the Court to issue a commission by appointing an employee of revenue
department to get the land in dispute demarcated and for which no application is
required. Para 10 of the said judgment is reproduced as under :-
"10. The moot question to be decided in this appeal is whether the property in
question is of plaintiff or defendant. Both the parties are claiming ownership right on
it. According to the plaintiff he purchased the land vide registered sale deed Ext-P-2
from Deen Dayal and the suit property is a piece of that land but according to the
defendant it is part of the property which he purchased from Sudhir Shrivastava vide
registered sale deed Ext-D-3. According to me, when there is dispute about
demarcation of the property in question and its identity and both the parties are
claiming it to be of their own on the basis of their document of title it was incumbent
upon the Court itself to issue a commission by appointing an employee of revenue
department not below the rank of Revenue Inspector to get it demarcated so that it can
be identified. In the instant case my attention has been drawn by learned counsel for
defendants to the application filed under Order XXVI, Rule 9, Civil Procedure Code but
the same has been rejected at the time of the consideration of temporary
injunctionapplication. To me learned trial Court erred in substantial error of law in
rejecting the said application. The learned First Appellate Court has also committed
the same error by not allowing the said application. Indeed, it was the duty of the Court
itself to issue commission by appointing an employee of Revenue Department not below
the rank of Revenue Inspector to get the land in dispute demarcated and for its
identification no application is required for that purpose."
14. In view of the law laid down in the above judgments, it is settled law
that the commission can be appointed only in case of demarcation and
encroachment. The issue of possession is to be decided only on the basis of
evidence.
15. The approach adopted by the Court is in accordance with law and in
conformity with scope of Order 26 Rule 9 CPC. First the plaintiff is required to
prove his case then only he can press his application for obtaining the spot
inspection report. Under the aforesaid provision even the civil Court is having suo
moto power to obtain a clarification/elucidation in respect of the matter. No case
for interference is made out at this stage. The petition is dismissed. Needless to say
that stay granted in favour of the petitioner/plaintiff, vide order dated 21/01/2019
stands vacated. Let a copy of this order be sent to the concerned trial Court for
information.
(ARUN KUMAR SHARMA)
JUDGE
skt
Signature Not Verified
SAN
Digitally signed by SANTOSH KUMAR
TIWARI
Date: 2022.03.14 18:07:35 IST
