Madhya Pradesh High Court
Shivnarayan vs Shyamlal on 14 March, 2023
Author: Vivek Rusia
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 14TH OF MARCH, 2023
MISC. PETITION No. 5362 of 2022
BETWEEN:-
SHIVNARAYAN S/O GIRDHARI, AGED ABOUT 63
YEARS, OCCUPATION: AGRICULTURE, R/O
GRAMPURA BARAHTHA, TEHSIL
NARSINGHGARH DISTRICT RAJGARH (MADHYA
PRADESH)
.....PETITIONER
(SHRI MANISH KUMAR VIJAYWARGIYA, LEARNED COUNSEL FOR THE
PETITIONER.)
AND
SHYAMLAL S/O RATIRAM, AGED ABOUT 55
YEARS, OCCUPATION: AGRICULTURE R/O
1. GRAM PURA BARATHA TEHSIL
NARSINGHGARH DISTRICT RAJGARH
(MADHYA PRADESH)
PREMNARAYAN S/O SHRIKISHAN, AGED
ABOUT 38 YEARS, OCCUPATION:
2. AGRICULTURE GRAM PURA BARAYATHA, TEH.
NARSINGHGARH, DISTRICT RAJGARH
(MADHYA PRADESH)
RAMGOPAL S/O KALURAM, AGED ABOUT 80
YEARS, OCCUPATION: AGRICULTURE GRAM
3.
PURA BARAYATHA, TEH. NARSINGHGARH,
DISTRICT RAJGARH (MADHYA PRADESH)
M.P. RAJYA THROUGH SHRIMAN JILADHISH
4.
MAHODAY, RAJGARH (MADHYA PRADESH)
.....RESPONDENTS
(SHRI SAMEER SAXENA, LEARNED COUNSEL FOR THE RESPONDENT
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 14-03-2023
18:27:00
-2-
NO.3.)
Reserved on : 03.03.2023
Delivered on : 14.03.2023
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This petition coming on for orders this day, the court passed the
following:
ORDER
[1] Petitioner/plaintiff has filed this present petition being aggrieved
by order dated 09.09.2022 whereby application filed under Order 26
Rule 9 of the CPC has been dismissed. The petitioner/plaintiff filed the
suit in respect of the suit land mentioned in paragraph No.2 of the plaint.
According to the plaintiff, the defendants/respondents has encroached
over some part of the land of his ownership. The petitioner/plaintiff
applied for demarcation which was conducted by the Tehsildar and the
possession of defendant was found hence that gave the cause of action
to file the suit for possession.
[2] The defendants have filed a written statement denying the
averment made in the plaint, they have also denied the demarcation as
well as the report submitted by the revenue authorities. Before adducing
the evidence, the plaintiff has filed an application under Order 26 Rule 9
C.P.C. seeking direction for demarcation of the suit land bearing survey
No.201/1/2 area 1.0110 Hectare through any revenue authorities. The
application was opposed by the defendants and the learned Court has
dismissed the application on the ground that the said provision cannot be
invoked for the collection of the evidence hence, this petition before this
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 14-03-2023
18:27:00
Court.
[3] Shri Manish Kumar Vijaywargiya, learned counsel for the
petitioner/plaintiff submits that the entire suit is based on the allegation
of encroachment and the report of the demarcation given by the
Revenue Officer but the respondents/defendants are disputing the same,
therefore, the Court must appoint a Commissioner in order to adjudicate
the controversy between the parties.
[4] Shri Sameer Saxena, learned counsel for the
respondent/defendant submits that the plaintiff has filed the suit alleging
encroachment, therefore, the plaintiff must establish his case by
adducing the evidence in support of the pleadings made in the plaint.
The provisions of Order 26 Rule 9 of CPC cannot be invoked for
collecting the evidence. In support of his contention, learned counsel
has placed reliance on a judgment in the case of Ashutosh Dubey and
another v/s Tilak Grih Nirman Sahakari Samiti [2004 (2) MPHT 14]
decided on 11.11.2003.
Heard both sides.
[5] In the case of Haryana WAQF Board Vs.Shanti Sarup and
Ors., reported in (2008) 8 SCC 671, wherein, it has been 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
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 14-03-2023
18:27:00
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
unauthorized 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."
[6] A similar view was taken by the High Court that in the case of
encroachment, appointing of commission is proper. In Durga Prasad
Vs. Parveen Foujdar, reported in (1975) MPLJ 810 this Court 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."
[7] Again this Court has taken a similar view in the case of Jaswant
S/o Kashi Ram Yadav Vs. Deen Dayal, reported in (2011) 2 MPLJ 576
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Signed by: DIVYANSH
SHUKLA
Signing time: 14-03-2023
18:27:00
had held that the duties of the Court to issue a commission by
appointing an employee of the 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
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Signed by: DIVYANSH
SHUKLA
Signing time: 14-03-2023
18:27:00
Inspector to get the land in dispute demarcated and
for its identification no application is required for that
purpose."
[8] This court in the case of Ansuiya Bai & others. Vs. Rajendra
Parsai & others. (W.P. No. 1915/2014) decided on 03.04.2018 has
already held as under:-
19. The scope of Order 26 Rule 9 of C.P.C. is
very limited. The trial court in any suit in which a
local investigation is required or proper for purpose of
elucidating any matter of dispute may appoint a
Commissioner. It is settled law that the parties are
required to prove their case by way of evidence,
therefore, it is the duty of the plaintiff/defendant to
first give evidence in support of their case. After the
evidence of parties, if Court deems it proper that any
issue is required to be elucidated or explained or
clarified then the Court may appoint a Commissioner.
The report of the Commissioner is merely a piece of
evidence and not binding on the trial Court. It can be
used for the purpose of appreciating the evidence on
record, if the petitioners/ defendants No.1 and 2 are
not satisfied with the report, they can give a better
evidence in support of their case. The Court has
already given an opportunity to them to adduce the
evidence therefore, the defendants cannot use the
Commissioner report to collect the evidence. Learned
trial Court rightly rejected the application, hence, no
interference is called for.
[9] Being aggrieved by the above order the SLP(C) 15712 was filed
before the Supreme Court of India and the same has been dismissed on
20.7.2018. In view of the above case law, the power conferred under
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 14-03-2023
18:27:00
Order 26 Rule 9 of the C.P.C. can be exercised at any stage but for a
limited purpose, as decided by the learned trial court.
[10] In the present case, the demarcation has already been done by
the revenue authorities and the petitioner/plaintiff has filed its report. If
the respondents/defendants are disputing the said, then the burden is on
the petitioner/plaintiff to prove that demarcation by adducing evidence.
Once the demarcation has already been done by the revenue authority,
there would be no need for fresh demarcation by appointing a
Commissioner, which would be done by the same authority. As
discussed above as per the scope of Order 26 Rule 9 of CPC if any
elucidation or clarification will be required in future at any stage of the
suit then the trial Court shall be competent to pass the order at the
appropriate stage.
In view of the above, the present petition is dismissed.
(VIVEK RUSIA)
JUDGE
Divyansh
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 14-03-2023
18:27:00
