Madhya Pradesh High Court
Manish Singh @Manishwar Singh vs Ajay Kumar Soni on 9 August, 2023
Author: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 9 th OF AUGUST, 2023
MISC. PETITION No. 4408 of 2023
BETWEEN:-
MANISH SINGH @ MANISHWAR SINGH S/O SHRI
HARVANSH SINGH, AGED ABOUT 42 YEARS,
OCCUPATION: OCCUPATION FARMAR, THROUGH
POWER OF ATTORNEY HOLDER HARVANSH SINGH S/O
LATE GULZAR SINGH AGE 75 YEARS, R/O
VILAYATKALA, TEHSIL BADWARA, DISTRICT KATNI
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI SHREYASH DUBEY - ADVOCATE)
AND
1. AJAY KUMAR SONI S/O LATE OMKAR SONI, R/O
VILAYATKALA, TEHSIL BADWARA, DISTRICT
KATNI (MADHYA PRADESH)
2. JYOTI SONI W/O AJAY SONI, R/O VILAYATKALA,
TEHSIL BADWARA, DISTRICT KATNI (MADHYA
PRADESH)
3. MASTERDAS S/O LAKSHMANDAS BAIRAGI, R/O
VILAYATKALA, TEHSIL BADWARA, DISTRICT
KATNI (MADHYA PRADESH)
4. STATE OF M.P. THROUGH COLLECTOR, DISTRICT
KATNI (MADHYA PRADESH)
.....RESPONDENTS
(SHRI AMIT KUMAR SONI - ADVOCATE FOR RESPONDENT
NO.1/CONTESTING RESPONDENT)
This petition coming on for admission this day, th e court passed the
following:
ORDER
Signature Not Verified
Signed by: ANIL
CHOUDHARY
Signing time: 8/9/2023
5:12:29 PM
By the instant petition filed under Article 227 of the Constitution of India,
the petitioner is assailing the order dated 14.07.2023 passed by the trial Court in
RCS No.4A/2017 whereby the application moved by the plaintiff/petitioner
under Order 26 Rule 9 of the Code of Civil Procedure has been rejected.
2. It is a suit for declaration, injunction and possession. Although, the parties
led their evidence and case is fixed for final argument and delivery of judgment.
3. Learned counsel for the petitioner submits that the petitioner/plaintiff has
moved an application under Order 26 Rule 9 of the Code of Civil Procedure for
appointment of Commissioner so as to ascertain which area of the
plaintiff/petitioner has been encroached by the defendant by raising construction
over there. However, the Court has rejected the application on the ground that
on earlier occasion i.e. on 07.07.2016 when case was fixed for recording of
evidence of the plaintiff/petitioner and that has been started and concluded on
21.04.2023, the application under Order 26 Rule 9 of CPC was submitted,
allowed and pursuant thereto, the Commissioner inspected the spot and the
plaintiff/petitioner got full opportunity to examine the Commissioner, but he
failed to prove as to over which portion of disputed property encroachment is
made by the defendant and to what extent he wanted to get the report of
Commissioner. The Court has observed that the plaintiff/petitioner's intention
was to make it clear as to on which portion of Khasra No.153/1 the shops have
been constructed and as such, he wanted to collect the evidence by appointing
Commissioner.
4. Shri Soni appearing for respondent No.1 has supported the order passed
by the trial Court and submitted that the Commissioner has already been
appointed which is clear from the impugned order and therefore, the Court has
Signature Not Verified
rightly rejected application for appointing the Commissioner.
Signed by: ANIL
CHOUDHARY
Signing time: 8/9/2023
5:12:29 PM
5. Considering the submissions made by the counsel for the parties and
perusal of record, especially the application submitted by the plaintiff/petitioner
under Order 26 Rule 9 of CPC, this fact has come out that the
plaintiff/petitioner has pointed out that some of the portion of disputed property
which belongs to him encroached upon by the defendant by raising
construction of shops over there. According to the plaintiff/petitioner, the
defendant has encroached the land and made construction over there, this can
be ascertained only by appointing Commissioner and getting the land
demarcated by the Commissioner if any report comes clarifying the situation
that would be helpful for proper adjudication of the case.
6. According to Shri Dubey, learned counsel for the petitioner on earlier
occasion neither any spot inspection was done nor the Commissioner has
submitted any report specifying as to what area is in possession of the
petitioner or has been encroached by the defendant. According to Shri Dubey,
the rejection of application on the ground that earlier application for appointing
the Commissioner was allowed and Commissioner was also appointed but
according to him, nothing has been done in the said commission and in fact, no
report has ever been produced before the Court. Although, learned counsel
appearing for the petitioner during the course of arguments has submitted that
the plaintiff/petitioner will not lead any additional evidence after coming the
report of Commissioner nor try to cross-examine the Commissioner. The report
is being called for the purpose of clarifying the position as to whether the
defendant by raising construction has actually encroached over the land of the
plaintiff/petitioner or not.
7. Taking into account the whole scenario of the case, I am of the opinion
Signature Not Verified
Signed by: ANIL
CHOUDHARY
Signing time: 8/9/2023
5:12:29 PM
that under the existing circumstances, the application for appointing the
Commissioner ought to have been allowed by the trial Court because the
dispute is not that the construction of shop made over Khasra No.153/1 and the
plaintiff/petitioner is taking rent over there. The allegation is that the land over
which shop is constructed belongs to the plaintiff/petitioner and that has been
encroached by the defendant and, therefore, the plaintiff/petitioner has
successfully established a case of encroachment alleging against the defendant
and under such a circumstance, when there is a dispute with regard to
encroachment, the Commissioner can be appointed by the Court and as per the
assurance given by the plaintiff/petitioner that no further evidence will be led by
him and even cross-examination of the Commissioner will not be done, I am of
the opinion that the Court has erroneously rejected the application of appointing
the Commissioner. As such, the application filed by the plaintiff/petitioner under
Order 26 Rule 9 of CPC is allowed. The trial Court is directed to appoint
Commissioner and call upon report so as to ascertain whether any
encroachment has been made over the land for which dispute is being raised or
not.
8. It is expected that since the case is fixed for final argument, the trial Court
will not grant much time to the Commissioner to submit its report and try to
conclude the case expeditiously. Under the existing circumstances, the trial
Court may take help of the Revenue Officer who can assist the Commissioner,
if any is appointed by the trial Court, so as to get the proper report.
9. With the aforesaid, this petition stands allowed and disposed of.
10. Pending application, if any, shall stand disposed of.
Signature Not Verified
Signed by: ANIL
CHOUDHARY
Signing time: 8/9/2023
5:12:29 PM
(SANJAY DWIVEDI)
JUDGE
ac/-
Signature Not Verified
Signed by: ANIL
CHOUDHARY
Signing time: 8/9/2023
5:12:29 PM
