Smt. Suman Pandagre vs Madhu Pandagre
2022 Latest Caselaw 3975 MP

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          IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                                BEFORE
                  HON'BLE SHRI JUSTICE VISHAL MISHRA

                               ON THE 23rd OF MARCH, 2022
                              WRIT PETITION No. 10376 of 2017

Between:-

SMT. SUMAN PANDAGRE W/O SHRI AJABRAO
PANDAGRE , AGED ABOUT    42    YEARS,
OCCUPATION: HOUSE WIFE DHONDHWADA
BETUL (MADHYA PRADESH)
                                                                                     .....PETITIONER

(BY SHRI SANKALP KOCHAR, ADVOCATE)

AND

1.   MADHU   PANDAGRE     S/O  TANI
PANDAGRE, AGED ABOUT 50 YEARS,
DHONDWADA TETUL (MADHYA PRADESH)

2.   LELADHAR PANDAGRE S/O TANI
PANDAGRE , AGED ABOUT 45  YEARS,  IN
FRONT OF OIL MILL ITARSI ROAD TEHSIL
(MADHYA    PRADESH)

3.   KAMLA PANDAGRE W/O LELADHAR
PANDAGRE IN FRONT OF OIL  MILL ITARSI
ROAD TEHSIL (MADHYA PRADESH)

4.   COLLECTOR BETUL BETUL (MADHYA
PRADESH)
                                                                                 .....RESPONDENTS

(BY SHRI PUSHPENDRA DUBEY FOR RESPONDENTS NO.1
TO 3 & SHRI SUDEEP CHATERJEE, GOVERNMENT
ADVOCATE FOR STATE)
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         This petition coming on for admission this day, the court passed
the following:
                                              ORDER

With the consent of the parties the matter is finally heard.

1. Challenge being made to the order dated 04.07.2017 (Annexure P-5), passed in Res A/800060/14 by the learned Third Civil Judge Class-I, Betul; whereby the application filed under Order 26 Rule 9 of CPC has been dismissed. It is pointed out that the petitioner/plaintiff has filed civil suit claiming relief of declaration and permanent

injunction to the effect that the by-lane passing through the land of the petitioner/plaintiff and the respondents/defendants be declared as a free passage for the petitioner/plaintiff as the same has been used for long period and is an innate part of the land. It was further prayed that the respondents/defendants be directed to not to encroach on the by-lane passing through the property. Counsel for the petitioner has placed reliance upon the judgments passed by the Hon'ble Supreme Court as well as various High Courts in the case of Payani Achuthan V. Chamballikundu Harijan Fisheries Development Cooperative Society & others reported in 1996 SCC Online Ker 92, Prembai W/o Omkarlal and others Vs. Ghanshyam S/o Vallabhdas and others reported in 2010 (3) M.P.L.J. 345, Haryana Waqf Board Vs. Shanti Sarup and others reported in (2008) 8 SCC 671, Maroli Achuthan V. Kunhipathumma reported in 1966 SCC Online Ker 103 and in the case of Loknath Gautam Vs. State of M.P. & others reported in 2018 SC Online MP 600. He has heavily relied upon the judgment passed by the coordinate Bench of this Court in the case of Loknath Gautam (supra) wherein the Coordinate Bench of this Court placing reliance upon the judgment passed by the Division Bench in the case of Durga Prasad v. P. Foujdar reported in 1975 JLJ 440 has opined that, "where there is dispute as to encroachment and the fact that whether there is an encroachment or not cannot be determined with the absence of agreed map except by appointment of the Commissioner under Order 26 Rule 9 of CPC".

2. The written statement was filed denying all the contentions. It was specifically denied that any by-lane adjoining to the land of the petitioner/plaintiff and the respondents/defendants was present. After denial of the by-lane by the respondents/defendants an application under Order 26 Rule 9 of CPC has been preferred for seeking spot inspection of the disputed property by the Revenue Inspector as the civil suit is in its preliminary stage and no prejudice would be caused to the respondents/defendants, if the additional issue as regards appointment of a Commissioner for physical verification and spot inspection for ascertaining the actual position of the property in

question is framed by the learned trial Court. Reply to the application was filed by the respondents/defendants on 04.08.2016; wherein, they have vehemently opposed the contentions and appointment of Commissioner and has submitted that no document has been filed by the petitioner/plaintiff to show that any by-lane is existing in the area. There is nothing on record to demonstrate that by-lane is present. Even if it is assumed that it is a Government land then also the aforesaid entry must be in the revenue records regarding existence of a by-lane, but nothing has been filed and only bald averments were being made in the plaint with respect to the existence of the by-lane, which has been used by the petitioner/plaintiff for several years. It is argued that the provisions of Order 26 Rule 9 of CPC cannot be used for collecting the evidence. In such circumstances, he has supported the impugned order and has prayed for dismissal of the writ petition.

3. Heard the learned counsels for the parties and perused the record.

4. From the perusal of the record it is seen that the civil suit has been filed seeking a declaration that the by-lane which is in existence since long which has been used by the petitioner/plaintiff by their easmentary right be declared not to be encroached by anyone specially the respondents/defendants in the matter. The written statement has been filed; wherein, there is a specific denial that the land in question is having any by-lane. The petitioner/plaintiff has not filed any document to show that the land belongs to the petitioner/plaintiff or even if the land does not of the ownership of the petitioner/plaintiff then there is a by-lane is in existence. There is nothing on record to show that it is Government land and the by-lane is already in existence. The provisions of Order 26 Rule 9 of CPC are required to be seen.

"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.

5. It is clear that the provisions of Order 26 Rule 9 of CPC cannot be used for collection of evidence in the matter. The civil suit is at the initial stage. The existence or non existence of the by-lane has to be established by leading cogent evidence in the matter. The Coordinate Bench of this Court in the case of Loknath Gautam (supra) have placing reliance upon the judgment of the Division Bench of this Court in the case of Durga Prasad (supra) has held as under:-

16. The ancillary question is whether for the purpose of determining the identity of land or in case of boundary dispute power under Order 26 Rule 9 can be exercised? This point is no more res integra. The Division Bench of this Court in the case reported in 1975 JLJ 440, [Durga Prasad v. P. Foujdar] opined that in case 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 CPC.

7. The Bombay High Court has consistently taken the view that in cases of boundary dispute and dispute about the identity of land, courts should order local investigation under Order 26 Rule 9 CPC. (See: (2004) 3 Mah LJ 724, [Sukhdeo Parashramji Bhugul (Dr.) v. Wamanrao Nagorao Charhat .]; (2009) 6 AIR Bom R (NOC 1033) 329, [Girish Vasantrao Bhoyar v. Nimbaji Warluji Bambal]; (2010) 4 AIR Bom R (NOC 450) 127, [Yeshwant Bhaduji Ghuse v. Vithobaji Laxman Ladekar .]; (2014) 1 AIR Bom R 16 : AIR 2014 (NOC 173) 59, [Malhar v. Shivaji] and (2015) 4 AIR Bom R (NOC 3) 2, [Shyam Janardam Chaoudary v. Asha Ramdas Katkar]). Alok Aradhe, J in 2012 (III) MPWN 62, [Beejanwala Talukdar v. Radhakrishna Rai] opined as under:

'6. The appellant in the plaint has stated that defendant nos. 1 and 2 have taken possession of the land belonging to him which has been marked with letters A, B, C, D which forms part of Khasra No. 32. On the other hand, defendants nos. 1 and 2 in the written statement have denied the factum of encroachment and have stated that they are in possession of the land which has been purchased by the defendant no. 2 on 20-01-1976 which

forms part of Khasra No. 32. There is no agreed map. In the absence of any agreed map, the trial court could not have decided the issue of encroachment. [See: Haryana Waqf Board v. Shanti Sarup, (2008) 8 SCC 671 and decision of Division Bench of this court in the case of Durga Prasad v. Parveen Foujdar, 1975 MPLJ 801]. For the aforementioned reasons, the substantial question of law framed by this court is answered in negative and in favour of the appellant.

[Emphasis Supplied]

18. In view of these judgments, it is clear that for the purpose of determining the identity of land by local investigation, exercise of power under Order 26 Rule 9 of CPC is necessary.

19. In Order 26 Rule 9 CPC the word used is - 'elucidate'. The meaning of this word as per Websters Dictionary is "to make light or clear, to explain, to remove obscurity from and render intelligible, to illustrate". According to Chambers Dictionary, "elucidate" means to make lucid or clear or to throw light upon, to illustrate, making clear, explanatory. According to Oxford Dictionary, "elucidate" means to throw light on, explain etc.

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. (See also: 1996 SCC On Line Mad 17, [A. Nagarajan Petitioner v. A. Madhanakumar]).

21. The respondents have relied on the judgment of Ashutosh Dubey (supra) and argued that under the garb of exercise of local investigation, collection of evidence is impressible. Suffice it to say, that in catena of judgments mentioned hereinabove, the local investigation for the identity of land was held to be permissible in exercise of power under Order 26 Rule 9 CPC. Thus, this argument that prayers of petitioner for appointment of Commissioner to identify the land will result into collection of evidence pales into insignificance.

6. The Hon'ble Supreme Court in the case of Haryana Waqf Board (supra) has held 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.

7. The High Court of Kerala in the case of Maroli Achuthan (supra) has held as under:-

7. The object of local investigation under Order 26, Rule 9, C.P.C. as stated in Amulya Kumar v. Annada Charan, AIR 1933 Cal 475 is not so much to collect evidence which can he taken in court but to obtain evidence which from its very peculiar nature can only be had at the spot. Order 26, Rule 9. C.P.C. invests the court with a discretion in passing an order for the issue of a commission and does not provide for the presence of both parties when an order for the issue of commission is passed. There may be cases where the object of the issue of commission itself will be lost by ordering notice to the defendant before passing the order for the issue of commission. In emergent cases it is necessary for the court to pass an order issuing commission without ordering notice. In the defendant also. An order for the issue of a commission for local investigation without issue of notice under Order 26, Rule

9, cannot be characterized as without jurisdiction.

8. That this is the only possible view is also clear from the wording of Order 20, Rule 18, C.P.C. which insists on notice to the parties to appear in person or by their agents or pleader in the property at the lime of investigation. Notice to the parties is made compulsory only before the investigation is done by the Commissioner. If necessary we are pre-pared to hold that under Order 26, Rule 9. It is open to the Court to pass an ex parte order for the issue of a commission for investigation even before the defendant has entered appearance.

8. From the perusal of the aforesaid judgments by the various Courts it is apparently clear that the application under Order 26 Rule 9 of CPC can be filed at any stage of the proceedings even prior to the defendants marking their presence before the Court or at the final stage of the proceedings. It is purely a legal question that can also be raised at the appellate stage also. The basic concept for filing an application seeking appointment of Commissioner for identity of a land in question or is there is any boundary dispute or dispute with respect to the maps or where there is dispute with respect to encroachment, which cannot be determined in absence of any agreed map normally the Court should have appointed the Commissioner. In the present case the civil suit has been filed on the ground of easmentrary right by the petitioner/plaintiff stating that the by-lane is in existence and it has been used by the plaintiff and his forefathers since long. There is a specific denial to the aforesaid aspect by the defendants in their written statement. In such circumstances, it is not a Government land or a Government road that the identity of the land is of a material aspect in the matter. There is nothing on record to show that the particular land is being identified as a disputed land in the matter. In such circumstances, the application filed under Order 26 Rule 9 of CPC should have been allowed by the learned trial Court for identification of the land in question. Allowing such an application will amount to substantial justice to the parties and will also expedite the proceedings of the civil suit.

9. In such circumstances, rejecting an application under Order 26 Rule 9 of CPC the learned trial Court has committed an error; therefore, the order impugned is unsustainable and is hereby set aside. The application filed under Order 26 Rule 9 CPC is hereby allowed. The learned trial Court is directed to appoint the Commissioner for identification of the land in question.

10. Accordingly, the petition stands allowed and disposed of.

Certified copy as per rules.

(Vishal Mishra) Judge taj.

Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2022.03.29 17:02:48 +05'30'