Dita vs Kalu
2024 Latest Caselaw 3972 MP

Madhya Pradesh High Court

Dita vs Kalu on 9 February, 2024

                                                                   1
                                       nIN THE HIGH COURT OF MADHYA PRADESH
                                                      AT INDORE
                                                             SA No. 16 of 2022
                                                     (DITA AND OTHERS Vs KALU AND OTHERS)

                           Dated : 09-02-2024
                                 Shri Vinay Gandhi - Advocate for the appellants.

                                 Shri Dharmendra Yadav - Advocate for the respondent No.1.

Heard the learned counsel for the appellants. Learned counsel for the appellants has submitted that lis between the parties was in the nature of encroachment by respondent over appellant's land

and, therefore, it is the duty of the Court itself to issue a Commission to get the land demarcated. Especially with regard to its identity, the Courts below before decreeing the suit should have got the identity established by issuing a Survey Commission to locate the plot in dispute. In support of his submission he has relied upon the judgments passed in the case of Shreepat Vs. Rajendra Prasad and others reported in JT 2000 (7) SC 379, the judgment passed by this Court in the case of Prembai Vs. Ghanshyam and others reported in 2010 (3) MPLJ 345 and the judgment passed by this Court in the case of Jaswant Vs. Deen Dayal reported in 2011 (3) MPHT 422 .

Heard on the question of admission.

This appeal is admitted for hearing on the following substantial questions of law :-

"(i) Whether the learned Courts below committed grave error of law in not appointing commission under Order 26 Rule 9 of Code of Civil Procedure when the matter pertain to encroachment as admittedly both the parties have adjacent land ?

(ii) Whether the sale deed dated 20.08.1997 is valid in eyes of law transferring ownership and possessory right to appellants in the disputed land

(iii) Whether the learned appellate Court committed a grave error of law in

recording that the disputed land was granted on patta to predecessors in title of appellants, when no such patta is on record.? "

Issue notice to the respondents on payment of process fee within a period of seven working days.

Notices be made returnable within four weeks'. Let a copy of memo of appeal along with the substantial questions of law a s framed today be supplied by the learned counsel for the appellant to the learned counsel for respondents within a period of one week.

List after four weeks'.

C.c. as per rules.

(DEVNARAYAN MISHRA) JUDGE

rashmi