Madhya Pradesh High Court
Secretary Father Jacob S/O Josef ... vs Purushottam on 3 January, 2023
Author: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 3 rd OF JANUARY, 2023
MISC. PETITION No. 6340 of 2022
BETWEEN:-
SECRETARY FATHER JACOB S/O JOSEF KAIPARAMPIL
KHANDWA DIOCESE SOCIETY THROUGH LOCAL
SUPERIOR FATHER JOMON S/O VARGHESE BARWAHA
TEH. BARWAHA DISTRICT KHARGONE (MADHYA
PRADESH)
.....PETITIONER
(SHRI ABHISHEK GUPTA, LEARNED COUNSEL FOR THE PETITIONER .)
AND
1. PURUSHOTTAM S/O HAJARILAL SAHU, AGED
ABOUT 55 YEARS, OCCUPATION: BUSINESMEN
AND AGRICULTURIST TILBHADESHWER MARG,
BARWAHA TEH. BARWAHA (MADHYA PRADESH)
2. STATE OF M.P. THROUGH COLLECTOR
KHARGONE (MADHYA PRADESH)
.....RESPONDENTS
(SHRI BHUWAN DESHMUKH, LEARNED GOVERNMENT ADVOCATE FOR
THE RESPONDENT/STATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
The present petition is filed by the plaintiff being aggrieved by the order
dated 23.11.2022 whereby the application filed under Order 26 Rule 9 of CPC
by the defendant no.1 has been allowed by appointing Revenue Officer as a
Commissioner to visit the spot and submit the report in respect of the
Signature Not Verified
encroachment, boundaries etc.
Signed by: REENA JOSEPH
Signing time: 05-01-2023
10:05:09
The petitioner/plaintiff filed a suit for title, declaration and permanent
injunction in respect of the land bearing survey no.324/3 area 1.619 hectare.
According to the plaintiff, the aforesaid land is protected by a fencing and is in
his possession since 1983-1984. The defendant being the erstwhile owner of the
land is trying to interfere into the peaceful possession therefore, he be restrained
as the plaintiff has perfected title by way of adverse possession. The plaintiff
filed an application under Order 39 Rules 1 and 2 of CPC.
The defendant filed reply to the application opposing temporary
injunction. After filing the reply, the defendant filed an application under Order
26 Rule 9 of CPC seeking appointment of Commissioner to get a report in
respect of Survey No.324/3 and 324/9. The application was opposed by the
plaintiff by submitting that the Tehsildar has already inspected the land on
07.02.2020, but he was prevented to do the demarcation by the defendant. The
Tehsildar has already passed an order for removing the fencing. The earlier suit
filed by the defendant has been dismissed. By the impugned order the Court
has allowed the application by placing reliance on the judgment in the case of
Om Prakash and another Vs. Ashok Kumar and another 2013 RN 124
directing the Commissioner to submit a report on the following points:-
1- losZa dzekad [email protected] jdck 1-8290 gSDVs;j ij fLFkr Hkwfe;ksa dk lhekadu dj nksuksa [kljs
dh prqlhZek uD'ks }kjk Li"Vr% n'kkZbZ tk, A
2- uD'ks esa pkjksa fn'kkvksa dk Li"Vr% mYys[k fd;k tk, A
3- [kljk ua [email protected] dh Hkwfe dh iwohZ esa< rFkk [email protected] dh if'eph es< dh mRrjh rjQ dh
xbZ rkj Qsaflx dks Hkh uD'ks esa yky L;kgh ls n'kkZ;k tk,A
Learned counsel for the petitioner submits that the provisions of Order
26 Rule 9 of CPC cannot be invoked to collect the evidence at this stage
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 05-01-2023
10:05:09
specially before deciding the application under Order 39 Rules 1 and 2 of CPC.
The parties are liable to produce the evidence in support of their case, instead
of requesting the Court for collecting the evidence. Hence, the impugned order
is bad in law and liable to be quashed.
There is a dispute of boundaries in respect of land of Survey No.324/3
and 324/9. The plaintiff and the defendant both are claiming possession over
survey no.324/3 and 324/9 respectively, therefore, the trial Court has only
directed the Commissioner to inspect the spot and submit the report in respect
of boundaries of the aforesaid two lands. Had it been a case of the plaintiff
filing an application under Order 26 Rule 9 of CPC, it would have been held
that he is trying to collect the evidence. But the application is filed by the
defendant specially in a case of dispute of boundaries and encroachment. The
Court has rightly exercised its power under Order 26 Rule 9 of CPC.
The Hon'ble Supreme Court in the matter of Haryana WAQF Board
Vs. 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:
"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, 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."
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 05-01-2023
10:05:09
This Court in case of Durga Prasad Vs. Parveen Foujdar, reported in
(1975) MPLJ 810 has also considered the scope of order 26 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."
Again this Court has taken similar view in case of Jaswant S/o Kashi Ram
Yadav Vs. 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 injunction application. 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."
In view of the law laid down in the above judgments, it is settled law that the
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 05-01-2023
10:05:09
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.
In view of the aforesaid, I do not find any ground to interfere in the impugned
order. Accordingly, this petition is dismissed.
(VIVEK RUSIA)
JUDGE
RJ
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 05-01-2023
10:05:09
