Madhya Pradesh High Court
Saleem Kha vs Rafeek Khan on 23 June, 2023
Author: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 23rd OF JUNE, 2023
MIS. PETITION NO. 3288 of 2023
BETWEEN:-
SALEEM KHA S/O SHRI TUNDE KHAN AGED
56 YEARS, OCCUPATION : AGRICULTURIST,
VILLAGE BABACHIYA TEHSIL NATERAN,
DISTRICT VIDISHA (MADHYA PRADESH),
PRESENTLY RESIDING AT MUNGAWALI
DISTRICT ASHOKNAGAR (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI ANIL GUPTA- ADVOCATE)
AND
1. RAFEEK KHAN S/O ISMILE KHAN
AGED 21 YEARS, VILLAGE
BABACHIYA TEHSIL NATERAN,
DISTRICT VIDISHA (MADHYA
PRADESH)
2. ISMILE KHAN @ USMAN KHAN S/O
NOT KNOWN AGED 71 YEARS,
VILLAGE BABACHIYA TEHSIL
NATERAN, DISTRICT VIDISHA
(MADHYA PRADESH)
3. THE STATE OF MADHYA PRADESH
THROUGH COLLECTOR DISTRICT
VIDISHA
.....RESPONDENT
(BY SHRI SIRAJ QUARESHI - GOVERNMENT
2
ADVOCATE FOR THE RESOPNDENT
NO.3/STATE)
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This petition coming on for admission this day, the Court passed
the following:
ORDER
The present petition under Article 227 of the Constitution of India
has been preferred against the order dated 14.03.2023 passed by the First
Civil Judge, Junior Division Ganjbasoda, District Vidisha (Madhya
Pradesh) in Case No.116/2021 RCS whereby the application filed by the
petitioner/plaintiff under Order 26 Rule 9 CPC for conducting the
demarcation of the land in dispute has been rejected.
Learned counsel for the petitioner vehemently argued that the order
passed by the learned trial Court is per se illegal as only on the basis of the
earlier demarcation which has been conducted of land in dispute, where
parties were put to notice and thereafter the demarcation was conducted,
there is no necessity at this stage again to appoint a Commissioner and
issue a commission for local investigation and conduct the demarcation
proceedings. It was further argued by the learned counsel for the petitioner
that since the demarcation which was earlier done by the authorities was
not proper, therefore, suit was filed with regard to possession of the land
over which the defendants/respondents have encroached upon. The trial
Court for ascertaining the extent of encroachment could have issued a
commission as per the provision contained in Order 26 Rule 9 CPC. It was
thus prayed that the petition be allowed and the trial Court be directed to
issue a commission for demarcation of the land.
Learned counsel for the petitioner has placed reliance in the matter
of Haryana Waqf Board Vs. Shanti Sarup and others reported in 2008
(4) M.P.H.T. 306 (SC) wherein the Apex Court has held that 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.
Heard the learned counsel for the petitioner on admission and
perused the record.
Legal position is very well settled with regard to issuance of
commission under Order 26 Rule 9 CPC. Rule 9 CPC of Order 26
empowers the Court to issue commission to make local investigation,
which may be required for the purpose of elucidating any matter in
dispute. Though the object of the local investigation is not to collect
evidence, which can be taken in the Court, but the purpose is to obtain
such evidence, which from its peculiar nature, can only be had on the spot
with a view to elucidate any point, which is left doubtful on the evidence
produced before the Court. To issue a commission under Rule 9 of Order
XXVI it is not necessary that both the parties must apply for issue of
commission. The Court can issue local commission even suo motu, if, in
the facts and circumstances of the case, it is deemed necessary that a local
investigation is required and is proper for the purpose of elucidating any
matter in dispute. Though exercise of these powers is discretionary with
the Court, but in case the local investigation is requisite and proper in the
fact and circumstances of the case, it should be exercised so that a final
and just decision is rendered in the case.
It is very much clear from the provision of Order 26 Rule 9 CPC
that only for the purpose of elucidating any matter of dispute which has
arisen between the parties which creates doubt on the evidence which has
been produced by the parties that the Court can exercise its jurisdiction
under Order 26 Rule 9 CPC for issuance a commission. In the present
case, the suit is at a preliminary stage and only written statement has been
filed by the Respondents. The petitioner/plaintiff has not led any evidence
so far. Apart from that, it is also noteworthy that as per the plaint's
averments, on earlier occasion the demarcation of the suit land was already
done by the competent authority which was already on record and if the
petitioner is or was not satisfied with the report he could or could have
challenged on appropriate stage before appropriate forum respondents and
thus the prayer made by the petitioner/plaintiff at this stage appears to
amounting to collect evidence as the very case of the petitioner is with
regard to possession. It is also very well settled that the plaintiff is first
required to lead evidence to prove his case only thereafter if there is some
doubt with regard to any issue, learned trial Court can issue a commission
but the stage has not come. Therefore, this Court does not find any
illegality committed by the trial in rejecting the application under Order
26 Rule 9 CPC. The judgment cited by the learned counsel for the
petitioner is with regard to dispute of boundaries and in that context, it has
been observed by the Apex Court that under such circumstances, it would
be appropriate for the Court to direct investigation by appointing a Local
Commissioner under Order 26 Rule 9 CPC.
Accordingly, the petition fails being devoid of merits and is hereby
dismissed.
(MILIND RAMESH PHADKE)
AK/- JUDGE
ANAND KUMAR
2023.06.23
19:28:09 +05'30'
