Madhya Pradesh High Court
Sachin Raghuvanshi vs Shailesh Kurchaniya on 14 February, 2025
Author: Anil Verma
Bench: Anil Verma
NEUTRAL CITATION NO. 2025:MPHC-GWL:3279
1 MP-6804-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 14th OF FEBRUARY, 2025
MISC. PETITION No. 6804 of 2024
SACHIN RAGHUVANSHI
Versus
SHAILESH KURCHANIYA AND OTHERS
Appearance:
Shri Satyendra Singh Rajput, Advocate for the petitioner.
Ms. Kritika Mohta, Advocate for respondents No. 1 to 5.
ORDER
Petitioner has preferred this miscellaneous petition under Article
227 of the Constitution of India being aggrieved by the impugned order
dated 25.10.2024 passed by Third Civil Judge, Junior Division,
Ganjbasoda, District Vidisha in Civil Suit No.162-A/2017, whereby an
application under Order 26 Rule 9 of Code of Civil Procedure (in short
"CPC") filed by the petitioner/defendant has been rejected.
2. Respondent/plaintiff filed a civil suit for relief of declaration of
title and permanent injunction. The lands of both the parties are situated
adjacent to each other. During the pendency of civil suit,
petitioner/defendant has preferred an application under Order 26 Rule 9
of CPC. After hearing both the parties, the Trial Court has rejected the
aforesaid application by the impugned order. Being aggrieved by the
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aforesaid, the petitioner has preferred this petition.
3. Learned counsel for the petitioner submits that there is a
boundary dispute between both the parties, therefore, appointment of
Commissioner is quite necessary for adjudication of the matter. Both the
parties did not file any demarcation report. The Trial Court has ignored
all these facts. Delay has been caused due to non-adducing plaintiff
evidence, therefore, reasons assigned by the Trial Court are not in
accordance with law, hence, he prays that impugned order may be set
aside and his application under Order 26 Rule 9 of CPC may be
allowed.
4. Learned counsel for the respondents/State oppose the prayer and
prays for its rejection by supporting the impugned order passed by the
Trial Court.
5. Both the parties heard and perused the documents.
6. From perusal of the record, it appears that civil suit pending
before the Trial Court is at the stage of plaintiff evidence and till now,
not a single witness has been examined. There is a dispute between both
the parties regarding demarcation of the land, which cannot be decided
on the basis of oral evidence.
7. The scope of Order 26 Rule 9 of CPC was considered by the
Supreme Court in the matter 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,
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the Court should direct the investigation by appointing a legal
Commission. Paras 4 and 5 of the aforesaid judgment are 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 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 unauthorised 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."
8. This Court in case of Durga Prasad Vs. Parveen Foujdar,
reported in (1975) MPLJ 810 has also considered the scope of Order 26
Rule 9 of CPC and held that the Court should order the appointment of
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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."
9. A coordinate Bench of this Court in the case of Kashiram S/o
Nandram Dhakad and others Vs. Rameshwar S/o Govindram Dhakad
and others [(2017) 3 MPLJ 226] has held that this dispute is regarding
demarcation of land and the Court should order to appoint the
Commissioner. Same principle has been laid down by the Division
Bench of this Court in the case of Jaswant Kaur Vs. Din Dayal [(2011) 3
MPHT 422].
10. On relying upon the law laid down by Coordinate Bench of
this Court, this Court is of the considered opinion that there is a
boundary dispute between both the parties and it is a clear cut dispute as
to the demarcation of the land, therefore, it is the duty of the Court for
proper adjudication of the matter to appoint a Commissioner for
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demarcation of the land. The Trial Court has ignored this fact and passed
the impugned order, which is not appropriate to the facts and
circumstances of the case, therefore, this petition is allowed and the
impugned order dated 25.10.2024 is set aside and the application filed by
the petitioner/defendant under Order 26 Rule 9 of CPC is allowed and
the Trial Court is directed to appoint a Commissioner for demarcation of
the land as per application filed by the petitioner.
11. Accordingly, this petition is allowed and disposed of.
(ANIL VERMA)
JUDGE
Abhi
