Jhallu vs Manoj
2023 Latest Caselaw 6929 MP

                                                      1
                          IN    THE     HIGH COURT OF MADHYA PRADESH
                                             AT JABALPUR
                                                  BEFORE
                                  HON'BLE SHRI JUSTICE MANINDER S. BHATTI
                                            ON THE 28 th OF APRIL, 2023
                                          MISC. PETITION No. 508 of 2022

                         BETWEEN:-
                         JHALLU S/O SULLI BRAMHAN, AGED ABOUT 64 YEARS,
                         OCCUPATION: AGRICULTURIST R/O VILLAGE DERI
                         TEHSIL AND DISTRICT CHHATARPUR (M.P) (MADHYA
                         PRADESH)

                                                                            .....PETITIONER
                         (BY SHRI ANOOP KUMAR SAXENA- ADVOCATE)

                         AND
                         1.    MANOJ S/O BRAJLAL KORI OCCUPATION: NIL
                               R/O VILLAGE DERI TEHSIL AND DISTRICT
                               CHHATARPUR (M.P) (MADHYA PRADESH)

                         2.    PRAKASH S/O BRAJLAL KORI OCCUPATION: NILL
                               R/O VILLAGE DERI, TEHSIL AND DISTRICT
                               CHHATARPUR (M.P.) (MADHYA PRADESH)

                         3.    GADUWA S/O RAJOLA AHIRWAR OCCUPATION:
                               NILL R/O VILLAGE DERI, TEHSIL AND DISTRICT
                               CHHATARPUR (M.P.) (MADHYA PRADESH)

                         4.    KAILASHIYA    W/O    GADUWA    AHIRWAR
                               OCCUPATION: NILL R/O VILLAGE DERI, TEHSIL
                               AND DISTRICT CHHATARPUR (M.P.)` (MADHYA
                               PRADESH)

                         5.    LAXMI    PRASAD   S/O   SULLI  BRAMHAN
                               OCCUPATION: NILL R/O VILLAGE DERI, TEHSIL
                               AND DISTRICT CHHATARPUR (M.P.) (MADHYA
                               PRADESH)

                         6.    LEELA S/O SULLI BRAMHAN OCCUPATION: NILL
                               R/O VILLAGE DERI, TEHSIL AND DISTRICT
                               CHHATARPUR (M.P.) (MADHYA PRADESH)

                         7.    KASHI   PRASAD    S/O   SULLI  BRAMHAN
Signature Not Verified
                               OCCUPATION: NILL R/O VILLAGE DERI, TEHSIL
Signed by: VIVEK KUMAR
TRIPATHI
Signing time: 5/2/2023
2:33:42 PM
                                                    2
                               AND DISTRICT CHHATARPUR (M.P.) (MADHYA
                               PRADESH)

                         8.    STATE  OF   M.P. THROUGH   COLLECTOR
                               CHHATAR PUR DISTRICT CHHATARPUR (M.P.)
                               (MADHYA PRADESH)

                                                                                          .....RESPONDENTS
                         (BY SHRI VIKRAM SINGH CHOUDHARY - PANEL LAWYER)

                               This petition coming on for admission this day, th e court passed the
                         following:
                                                               ORDER

This petition is assailing order dated 19.1.2022 passed by II District Judge, Chhatarpur in Regular Civil Appeal No. 73/2017 by which, an

application filed by the present petitioner under Order 26 Rule 9, Code of Civil Procedure, 1908 has been dismissed.

2. Counsel for the petitioner/plaintiffs submits that a suit was filed by the plaintiff seeking declaration on the ground of adverse possession and also declaring the Patta to be null and void granted in favour of respondent Nos. 2 to

5. The said Civil Suit, was dismissed vide judgment and decree dated 31.7.2017. Assailing the said judgment and decree the present petitioner preferred first appeal before the first lower appellate Court. Before the lower appellate Court, the present petitioner moved an application under Order 26 Rule 9 C.P.C which has been rejected vide impugned order dated 19.1.2022. Assailing which this petition is being filed.

3. Counsel contends that the Court below has failed to appreciate the specific averments made in paragraphs 1 and 2 of the application. In paragraph 1 of the application, it was categorically submitted by the present petitioner that the petitioner is in possession of the property in question since 35 to 40 years and also cultivating the land and there is also a well in the property; to construct Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 5/2/2023 2:33:42 PM

the same, the plaintiff incurred expenses of Rs.2 Lakhs. Therefore, the application under Order 26 Rule 9 C.P.C. was required to be allowed in order to adjudicate the controversy properly. Thus, submits that the impugned order deserves to be set aside.

4. Counsel for the State submits that a perusal of order impugned reflects that the same requires no interference, having been passed upon due appreciation of the nature of lis and also the controversy in question.

5. Heard the rival submissions and perused the record.

6. A perusal of the impugned order reflects that the lower appellate Court vide order dated 19.1.2022 has rejected the application filed by the petitioner under Order 26 Rule 9 C.P.C. A perusal of the application filed under Order 26 Rule 9 C.P.C. reflects that the petitioner made an effort to demonstrate that the petitioner is in possession of the property in question and also has constructed a well in the property in question and, therefore, the Commissioner's report to substantiate the said stand of the petitioner was required. The Trial Court while dealing with the petitioner's application has observed that the provisions of Order 26 Rule 9 C.P.C cannot be invoked to collect evidence and also referred to issue No. 1 as regards the possession of the present petitioner over the property in question and accordingly dismissed the application.

7. A perusal of the order passed by the Trial Court reflects that the Trial Court has taken into consideration the issue No. 1 which was framed by the Trial Court and, the same was answered in negative and accordingly the Trial Court concluded that the application under Order 26 Rule 9 C.P.C could not have been allowed in order to collect evidence.

8. In the considered view of this Court the lower appellate Court has not Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 5/2/2023 2:33:42 PM

committed any error while passing the impugned order.

9. Accordingly no interference is warranted. The petition stands dismissed.

(MANINDER S. BHATTI) JUDGE vivek

Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 5/2/2023 2:33:42 PM