Madhya Pradesh High Court
Damodar vs Atar Singh on 12 August, 2025
Author: Hirdesh
Bench: Hirdesh
NEUTRAL CITATION NO. 2025:MPHC-GWL:17545
1 MP-4247-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 12th OF AUGUST, 2025
MISC. PETITION No. 4247 of 2025
DAMODAR AND OTHERS
Versus
ATAR SINGH AND OTHERS
Appearance:
Shri Anuraj Saxena- Advocate for the petitioners.
Shri Dileep Awasthi - Government Advocate for respondent/State.
ORDER
This petition under Article 227 of the Constitution of India has been
preferred by petitioners being aggrieved by the order dated 21.07.2025
(Annexure P-1) passed in RCS-A No.16 of 2025 by Third Civil Judge,
Junior Division, Karera, District Shivpuri whereby trial Court has dismissed
the application of the petitioner filed under Order 26 Rule 9 for appointing
commission for spot inspection.
2. Brief facts of the case are that petitioner filed a civil suit for for
declaration and permanent injunction and also for recovery of possession in
respect of land bearing Survey No.1209 situated in Village Chirli, Tehsil
Karera, District Shivpuri. Respondents filed their written statements and
submitted that they constructed their house on Survey No.1210 not on
Survey No.1209. Thereafter, petitioner filed an application under Order 26
Rule 9 of CPC for demarcation of spot whether construction of the defendant
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is over Survey No.1209 or 1210, but trial Court has rejected the application.
3. Being aggrieved by the impugned order, this petition is filed by
submitting that order of the trial Court is illegal, without jurisdiction and
contrary to law. It is further submitted that trial Court has erred in dismissing
the application filed by petitioner ignoring the fact that the question of
encroachment can be decided by appointing commission and it does not
amount to collection of evidence. Therefore, prayed for setting aside the
impugned order and allowing the application under Order 26 Rule 9 of CPC
for appointing Commission.
4. Heard learned counsel for the parties present in the Court and
perused the entire record.
5. On perusal of the record, it appears that dispute was raised by the
parties before the Court, whether the respondents had made any construction
upon survey No.1210 or 1209. It is also clear that both survey numbers are
adjacent to each other and by way of demarcation, it must be clear that
whether respondents constructed over survey No.1210 or 1209 or not?
Therefore, it is necessary to appoint Commission is necessary for just and
proper adjudication of the suit.
6. The Coordinate Bench of this Court in M.A.No.1061/2003 (Om
prakash and Another Vs. Ashok Kumar and Another) judgment dated
04.01.2013 held as under:-
9. "So far as question of demarcation by a Revenue Officer before
filing of a suit is concerned, the same, in our considered opinion,
shall not provide any solace to the defendants. Rule 9 of Order 26
relates to the directions by a Court. Any report by Revenue
Officer which could be collected before filing of the suit would
have been evidence in favour of the plaintiff but the commission
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report in the present set of the circumstances would not be
evidence in favour of the plaintiff but would be an actual report of
the spot.
7. So, after considering the view of Coordinate Bench of this Court, it
is clear that trial Court has committed an error in rejecting the application
filed by petitioners for appointing commission for spot inspection, therefore,
impugned order is set aside.
8. Learned trial Court is directed to appoint appropriate Commission in
accordance with law and call the Commission's report for just and proper
adjudication of the suit in accordance with law.
With aforesaid observation, petition stands disposed of.
(HIRDESH)
JUDGE
*AVI*
