Madhya Pradesh High Court
Bihari Lal Patel vs Ramraj Patel on 27 February, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 27th OF FEBRUARY, 2024
MISC. PETITION No. 4929 of 2023
BETWEEN:-
BIHARI LAL PATEL S/O LATE SHRI RAMGOVIND
PATEL, AGED ABOUT 64 YEARS, OCCUPATION:
FARMING GRAM BARAU KARHIYA TOLA POST
OFFICE BARAU TEHSIL SEMRIYA DISTRICT
REWA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SUSHANT RANJAN - ADVOCATE )
AND
1. RAMRAJ PATEL S/O LATE SHRI RAMDAS
PATEL, AGED ABOUT 42 YEARS,
OCCUPATION: FARMING GRAM BARAU
KARHIYA TOLA POST OFFICE BARRAU
TEHSIL SEMARIYA DISTRICT REWA
(MADHYA PRADESH)
2. THE STATE OF M.P. THROUGH
COLLECTOR REWA (MADHYA PRADESH)
.....RESPONDENTS
(SHRI SWAPNIL GANGULY - DEPUTY ADVOCATE GENERAL FOR RESPONDENT
NO. 2 / STATE )
This petition coming on for admission this day, the court passed
the following:
ORDER
1. It is submitted by counsel for the petitioner that he has filed an
application under Order 26 Rule 9 of CPC for appointment of
local Commissioner as there is no agreed map between the
parties and thus, for identification of the land, appointment of
local Commissioner is necessary. To buttress his contention,
counsel for the petitioner has relied upon an order passed by a
Coordinate Bench of this Court in the case of Vinod Kumar
and another vs. Vikramaditya Dwivedi and others in
M.P.No.473/2018 decided on 20.8.2018, judgment passed in the
case of Kamal Singh and another vs. Roop Singh (since dead)
through L.Rs. and another, reported in 2011 (3) MPLJ 333,
order passed in the case of Jaswant Vs. Deen Dayal reported in
2011 (2) MPLJ 576, order passed in the case of Loknath
Gautam vs. State of M.P. and others reported in 2018 SCC
Online MP 600 and order passed in the case of Anurag Jaiswal
vs. Collector, Khandwa and others, reported in (2019) 2 MP
LJ 637.
2. Heard counsel for the parties.
3. The Court by appointing a local Commissioner cannot delegate
its power to adjudicate the lis. It is well established principle of
law that local Commissioner can be appointed or should be
appointed in the case of boundary dispute. Boundary dispute
presupposes that there is no other dispute including ownership or
the map etc.
4. In the present case, admittedly there is no agreed map between
the parties. Thus, apart from the boundary dispute, other disputes
are also involved like ownership and location of the land. It is
well established principle of law that in case of any dispute, the
boundary mentioned in the sale deed would prevail. If an
application under Order 26 Rule 9 CPC is allowed, then it would
certainly amount to delegation of power of the Court to the local
Commissioner which is not permissible. Therefore, where the
application would result in collection of evidence as well as
delegation of power of the Trial Court to the local
Commissioner, then such an application cannot be allowed.
5. So far as the judgments relied upon by counsel for the petitioner
are concerned, it is suffice to mention here that factum of
delegation of power by the Trial Court to the local
Commissioner has not been taken note of. Accordingly, the Trial
Court did not commit any mistake by rejecting the application
filed by the petitioner under Order 26 Rule 9 of CPC. As no
jurisdictional error was committed, therefore, the petition fails
and is hereby dismissed.
6. In spite of the fact that the order was finally dictated in the open
Court, counsel for the petitioner persisted with his argument.
This habit cannot be appreciated. Once the order has been
dictated, then it is for the petitioner to decide as to whether he is
aggrieved by the said order or not and if he finds that the order
passed by the Court is not acceptable to him, then he has a
remedy to file SLP but he cannot insist upon the Court to pass an
order in his favour.
7. Looking to the conduct of the counsel for the petitioner, the
petition is dismissed with cost of Rs.10,000/- (Rupees Ten
Thousand) to be deposited by petitioner in the Registry of this
Court within a period of one month from today, failing which,
the Registrar General is directed to not only initiate proceedings
for recovery of cost but shall also register a case for Contempt of
Court.
(G.S. AHLUWALIA)
JUDGE
JP
JITENDRA KUMAR
PAROUHA
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=PRINCIPAL BENCH INDORE,
2.5.4.20=a650f9cd964b96221568096ac01ab1bf019e0b76f6fc652f893c6324a2f64a5a,
postalCode=482001, st=Madhya Pradesh,
serialNumber=627378D3EE51220F5E81130EECF5ABBEC55EBB6B78033E5FF10402B19143AD99
, cn=JITENDRA KUMAR PAROUHA
Date: 2024.02.28 02:22:27 -08'00'
