Madhya Pradesh High Court
Narendra vs Abdul Khan on 24 July, 2023
Author: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 24 th OF JULY, 2023
MISC. PETITION No. 596 of 2020
BETWEEN:-
NARENDRA S/O SHOBHAGMAL JAIN AGED 60
YEARSOCCUPATION: (TRUSTEE "SHRI
SHANKHESHWAR PARSHWANATH RAJENDRA JAIN
TRUST") R/O BADI CHOUPATI, BADNAWAR, DISTRICT
DHAR (MADHYA PRADESH)
.....PETITIONER
(SHRI RAJEEV BHATJIWALE, LEARNED COUNSEL FOR THE
PETITIONER)
AND
1. ABDUL KHAN S/O MUNIR KHAN(PLAINTIFF),
AGED ABOUT 65 YEARS, OCCUPATION:
AGRICULTURIST AND DRIVER R/O 46,
SHRINAGAR, KHAJRANI KAKAD, INDORE
(MADHYA PRADESH)
2. BABULAL JI S/O SOBHAGMAL JI NOT MENTION
(MADHYA PRADESH)
3. SUJANMALJI S/O SOBHAGMAL JI NOT MENTION
(MADHYA PRADESH)
4. AMOLAKCHAND JI S/O SOBHAGMAL JI NOT
MENTION (MADHYA PRADESH)
5. KUSHALKUMAR JI S/O SOBHAGMAL JI NOT
MENTION (MADHYA PRADESH)
6. VINOD KUMAR JI S/O SOBHAGMAL JI NOT
MENTION (MADHYA PRADESH)
7. SAJANBAI W/O LATE SHRI SOBHAGMAL JI
THROUGH LRS SMT. SHEELA D/O LATE
SOBHAGMAL JAIN OCCUPATION: HOUSEWIFE
BADNAWAR, DIST DHAR (MADHYA PRADESH)
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 26-07-2023
18:23:59
2
8. SAJANBAI W/O LATE SHRI SOBHAGMAL JI
THROUGH LRS SMT. PUSPHA D/O LATE
SOBHAGMAL JAIN OCCUPATION: HOUSEWIFE
BADNAWAR, DIST DHAR (MADHYA PRADESH)
9. PEMABAI W/O LATE KANTILALJI THROUGH LRS
1. PANKAJ S/O KANTILAL JI JAIN, AGED ABOUT 28
YE A R S , BADNAWAR DIST DHAR (MADHYA
PRADESH)
2. JITENDRA S/O KANTILAL JI JAIN, AGED
ABOUT 24 YEARS, BADNAWAR, DIST DHAR
(MADHYA PRADESH)
3. SONU S/O KANTILALJI JAIN, AGED ABOUT 20
YEARS, BADNAWAR (AT PRESENT RAJGARH DIST
DHAR) (MADHYA PRADESH)
10. AHMED KHAN S/O MUNIRKHAN R/O BADNAWAR
(MADHYA PRADESH)
11. ISMAILE KHAN S/O NAJIRKHANJI THROUGH LRS
1. MUBARIK S/O ISMAILE KHAN, AGED ABOUT 45
Y E A R S , OCCUPATION: PAINTING R/O 129,
SWARNABAG COLONY, INDORE (MADHYA
PRADESH)
2. RIHANA W/O JAKIR, AGED ABOUT 34 YEARS,
OCCUPATION: HOUSEWIFE R/O NAYAPURA,
RINGNOD, TEHSIL JAORA (MADHYA PRADESH)
3. KALLO W/O KALLU, AGED ABOUT 32 YEARS,
OCCUPATION: HOUSEWIFE R/O SWARNABAG
COLONY, INDORE (MADHYA PRADESH)
12. HASAM S/O NAJIRKHANJI R/O INDORE (MADHYA
PRADESH)
13. AZAD S/O RAMJAN R/O BADNAWAR (MADHYA
PRADESH)
14. MUNSHI S/O RAMJAN R/O BADNAWAR (MADHYA
PRADESH)
15. NISAR S/O IBRAHIM R/O INDORE (MADHYA
PRADESH)
16. KALLU S/O KASAM R/O INDORE (MADHYA
PRADESH)
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 26-07-2023
18:23:59
3
17. JUBER S/O KASAM R/O INDORE (MADHYA
PRADESH)
18. SAHABAJ S/O KASAM R/O INDORE (MADHYA
PRADESH)
19. STATE OF MP THROUGH COLLECTOR
COLLECTOR DHAR (MADHYA PRADESH)
20. SMT. SHOBHA W/O LOKESH KUMARJI GUPTA
AGED MAJOR OCCUPATION: HOUSEWIFE R/O
BADNAWAR TEHSIL BADNAWAR DIST DHAR
(MADHYA PRADESH)
21. SHRI SHANKHESHWAR PARSHWANATH
RAJENDRA JAIN TRUST, SHRI
SHANKHESHWARPURAM THIRATHDHAM MHOW
NEEMUCH HIGHWAY BADNAWAR, DIST DHAR
(MADHYA PRADESH)
22. KAILASH S/O MISHRILAL JAIN (TRUSTEE SHRI
SHANKHESHWAR PARSHWANTH RAJEDNRA
JAIN TRUST) R/O SOMESHWARPATH, BARNAGAR,
DIST UJJAIN (MADHYA PRADESH)
.....RESPONDENTS
(SHRI NANDLAL TIWARI, LEARNED COUNSEL FOR THE RESPONDENT
NO.1)
Th is petition coming on for hearing this day, th e court passed the
following:
ORDER
This miscellaneous petition under Article 227 of the Constitution of India
has been filed by the petitioner being aggrieved by the order dated 18.11.2019
passed by the learned Civil Judge, Class-I, Badnawar, District Dhar in Civil Suit
No.63-A/2015.
2. The brief facts of the case is that plaintiff/respondent no.1 filed the present
suit for declaration and possession claiming that he is the owner of the land
survey no.2084 village Kheda Tehsil Badnawar alleging that the petitioners are
constructing a Jain Temple over the north side of the land. He further alleged
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 26-07-2023
18:23:59
that the land stands mutated in the revenue record in the name of Sobhagmal
S/o Onkarlal Jain. He claimed the relief of removal of possession of the
petitioners/defendants from the suit land.
3. The defendants filing their written statements claimed that the suit land
stands recorded in the name of Sobhagmal S/o Onkarlal Jain right from 1965
and has been in possession of the land before 02.10.1959, and thus has become
Bhumiswami with the enforcement of MPLRC on that date. He further pleaded
that a part of area 0.420 hectare of land has been given to Shri Shankheshwar
Parshwanath Rajendra Jain Trust" through a registered gift deed dated
26.06.2012 which is in the knowledge of the plaintiff and since then the
construction is in progress and almost completed.
4. During the course of trial, the petitioner filed an application under Order 26
Rule 9 of CPC praying that the plaint is not clear as to which area is allegedly
encroached and which area and type of construction the plaintiff seeks to
remove, therefore, a commission be issued to ascertain the demarcation of the
land and identify the land area which is being alleged to be encroached.
5. The application was opposed by the respondent no.1/plaintiff on the
ground that his suit is barely for declaration and possession, therefore, the
demarcation of the land is not relevant. It was also urged that no evidence could
be collected through the commission, therefore, the application was sought to
be dismissed.
6. The learned trial Court by the impugned order has dismissed the
application on the ground that no commission could be issued to collect the
evidence of a party and also that the possession cannot be ascertained by
issuing a commission. Being aggrieved by the impugned order, the petitioner
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 26-07-2023
18:23:59
has filed this petition.
7. Learned counsel for the petitioner submitted that the learned trial Court has
grossly erred in appreciating the facts of the case. He further submits that the
trial Court has failed to appreciate that the suit by the plaintiff is mainly for
declaration of his title and also for recovery of possession from the petitioner.
In such circumstances, the crucial point for determination before the learned
trial Court would be to ascertain the area which is alleged to be encroached by
the petitioner, therefore, it is essential to issue commission to ascertain which
area was encroached by the petitioner.
8. Learned counsel for the petitioner has relied upon a judgment in the case of
Matadeen Vishwakarma Vs. Maniram Gupta AIR Online 2019 MP 200
in which the co-ordinate Bench of this Court held that the appointment of
commission for investigation to identify the location of well, house being in
dispute which would not amount to permitting defendants to collect evidence.
9. Learned counsel for the respondent supports the order impugned and
prays for dismissal of the petition.
10. Heard learned counsel for the parties and perused the impugned order.
11. On perusal of the plaint filed before the trial Court (Annexure P-1) it is
found that the suit was filed by respondent no.1 for declaration and possession
of the disputed land stating that respondent no.1 is the owner of the aforesaid
land bearing survey no.2084 village Kheda Tehsil Badnawar and the respondent
no.1 had knowledge that petitioner is constructing a Jain Temple over the north
side of the land. Hence, perusing the averments of the plaint it is found that the
case is merely for declaration and possession of the disputed land and
respondent no.1/plaintiff pleaded that when he had taken the revenue record
from the Tehsildar Court, he had knowledge that the petitioner mutated the
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 26-07-2023
18:23:59
disputed land in his own name in the revenue record. Hence, he also filed a suit
for declaration to declare the mutation proceedings before the Tehsildar Court
as null and void.
12. In the present case, the dispute between the parties is whether the
respondent no.1 or petitioner is the owner of the disputed land. Therefore,
perusing the plaint and the relief clause of the plaint, it is clear that respondent
no.1 is seeking declaration and possession of land survey no.2084 rakba 1.657,
village Kheda Tehsil Badnawar and in the trial Court it was not a dispute that
who is the encroacher. The main dispute is who is the real owner of the
disputed land. The point of dispute cannot be decided by way of issuing
commission. Order 26 Rule 9 of CPC reads as under:-
"Order 26 Rule 9 CPC-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."
13. It is settled principle that by way of issuing commission, evidence cannot
be collected. In the present case, respondent no.1 stated in his pleading that
petitioner had encroached his land and seeking relief of possession from him.
On perusal of the impugned order Annexure P-1, it is found that the trial Court
has rightly rejected the application under Order 26 Rule 9 of CPC filed by the
petitioner.
14. In view of the aforesaid discussions, no case for interference in made out
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 26-07-2023
18:23:59
in the impugned order. Accordingly, this miscellaneous petition is dismissed.
C.C.as per rules.
(HIRDESH)
JUDGE
RJ
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 26-07-2023
18:23:59
