Madhya Pradesh High Court
Heeramani Patel vs Devraj Namdeo on 8 August, 2024
1 MA-5709-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 8 th OF AUGUST, 2024
MISC. APPEAL No. 5709 of 2024
HEERAMANI PATEL AND OTHERS
Versus
DEVRAJ NAMDEO AND OTHERS
Appearance:
Shri Aditya Jain - Advocate for the Petitioner.
None for the Respondents.
ORDER
The present appeal has been filed under Order 43 Rule 1 (u) of the
C.P.C. arising out of the judgment of remand dated 30.05.2024 passed by the
appellate Court.
2. The facts of the case in brief are for the purpose of this order are
that a suit was filed by the present appellants against the
respondent/defendant wherein on the allegation that the defendant has
encroached upon a portion of land of the petitioner in Survey No.421 owned
by the plaintiffs and relief was sought for declaration of title and recovery of
possession of portion of land 36' x 11' by the trial Court by judgment and
decree dated 19.12.2019.
3. Learned counsel for the appellant submits that now, the appellate
Court has remanded the matter to the trial Court for appointing local
Commissioner in terms of order 26 Rule 9 of C.P.C. and then to decide the
suit afresh by holding that the case involves boundary disputes and the
2 MA-5709-2024
appointment of local Commissioner was required before adjudication of the
matter by the trial Court.
4. Learned counsel submits that in fact there were no boundary
disputes in the matter and also that earlier also, there was demarcation
proceedings which resulted in demarcation order dated 24.06.2005 wherein
the defendant was found to have raised construction in some portion of land
in Survey No.421 owned by the plaintiffs. Learned counsel for the appellant
further submits that there was already demarcation report of the year 2005 on
record and therefore there was no necessity to order appointment of local
Commission by the appellate Court in terms of Order 26 Rule 9 of C.P.C.
and the remand order is thus bad in law.
5. Heard.
6. Upon hearing learned counsel for the appellant and on perusal of the
record, it is seen that the specific case of the plaintiffs/appellants is that they
are owners of Survey No.421 and on some portion of land of Survey No.421,
the defendant No.1 has encroached. The defendant No.1 has not disputed the
title of the plaintiffs on Survey No.421 nor has disputed that he has raised
construction. His case is that he has in fact raised construction in Survey
No.451 in which the plaintiffs has no concerned and his possession is not in
Survey No.421 but is in Survey No.547 with which the plaintiffs have no
concern and his possession is not in Survey No.421 but is in Survey No.547.
This is the case of the defendant that he is occupying the land but that land
does not fall in Survey No.421 but falls in Survey No.547. The said dispute
SignatureisNot
certainly
Verified a dispute of boundaries because the factum of construction is
Signed by: KRISHNA
SINGH
Signing time: 14-08-2024
2.29.09 PM
3 MA-5709-2024
admitted and title of the plaintiffs in Survey No.421 is also not disputed and
the only question is whether the construction of the defendant No.1 is in
Survey No.421 or not.
7. The trial Court had held that the defendant is not in owner ship of
Survey No.547 also and also that in the demarcation proceedings dated
24.06.2005, the defendant was given liberty to move application for
demarcation of his land but he did not submit any application.
8. Upon perusal of para 12 of Judgment of the trial Court, it is evident
that the trial Court has recorded that the demarcation which took place in the
year 2005 was at instance of application of the father of plaintiff and
objection was raised by the present defendant but while rejecting the
objection, liberty was granted to the present defendants by the Revenue
authority to move separate application for demarcation of his land. The said
demarcation order dated 24.06.2005 led to revenue proceedings for eviction
of the present defendant No.1 and the eviction order was set aside by
Revenue Court of Sub Divisional Officer vide order dated 27.07.2017. In this
backdrop, this Civil Suit was filed by the present appellants in the year 2018.
9. The appellate Court has held that the matter involves boundary
disputes and looking to the facts as aforementioned in this order, it is evident
that the matter indeed involves boundary dispute. It is settled in law that such
a dispute has to be adjudicated by a local Commission. (See Haryana Waqf
Board Vs. Shanti Sarup and Others reported in 2008 8 SCC 671) .
10. The appellate Court has further held that the aspect of the
Signaturedefendant
Not Verified having title over Survey No.547 is not relevant for the purpose of
Signed by: KRISHNA
SINGH
Signing time: 14-08-2024
2.29.09 PM
4 MA-5709-2024
eviction of the defendant because the matter involves allegation of
encroachment on Survey No.421. The appellate Court has also considered
the earlier demarcation of the year 2005 remained disputed and therefore, the
appellate Court has directed to carry out spot inspection by local commission
in terms of Order 26 Rule 9 of C.P.C. and then to decide the suit.
11. In view of the dispute involved in the matter, no interference is
warranted in the aforesaid judgment of the remand passed by the appellate
Court.
12. Accordingly, the appeal stands dismissed.
(VIVEK JAIN)
JUDGE
veni
