[Cites 5, Cited by 0]
Madhya Pradesh High Court
Deceased Rais Ahmad S/O Akbar Khan ... vs Smt. Afsana @ Babli on 12 January, 2026
NEUTRAL CITATION NO. 2026:MPHC-IND:844
1 MP-2477-2020
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ALOK AWASTHI
MISC. PETITION No. 2477 of 2020
DECEASED RAIS AHMAD S/O AKBAR KHAN THR.LRS SMT.ROSHAN
AARA AND OTHERS
Versus
SMT. AFSANA @ BABLI AND OTHERS
Appearance:
Shri Aniket Naik, learned counsel for the petitioner.
Shri Brijesh Garg, learned counsel for the respondent [R-2].
Reserved on : 29.10.2025
Pronounced on : 12.01.2026
ORDER
1. The present petition under Article 227 of the Constitution of India has
been filed by the petitioner against the order dated 27.06.2020 (Annexure P/14)
passed in Civil Appeal No.23-A/2018 by I st Additional District Judge, Jaora,
District Ratlam, whereby, the application submitted by the petitioner under Order
26 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC")
has been dismissed.
2. Succinctly, the facts of the case are that the respondents/plaintiffs filed a
suit for declaration, injunction and possession in respect of land admeasuring
east west 17 feet and north south 10 feet i.e. 170 Sq.Ft. It is pleaded that the said
disputed property is adjoined to the house of plaintiffs wherein part of the house,
has alleged to have been bequeathed by defendant No. 2 / respondent No. 2 from
Khatun Bee D/o Gheesa Khan vide Will dated 01.10.2004. Rest of the part of
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aforesaid house, has alleged to have been gifted to defendant No.1 / respondent
No. 1 by Raja S/o Bhondu Kha vide Hibanama dated 05.07.2001. In furtherance,
it is averred in the plaint that adjacent to the built-up house, is disputed property
which was also forming part of the larger property bequeathed and gifted as above
mentioned.
3. Similarly, the plaintiffs have pleaded title on the basis of to gift deed
dated 05.07.2001, therein also, neither the disputed property has been described
nor identified to have been gifted. Along with plaint, a self prepared map has also
been filed. The present petitioners filed their joint written statement contending
that initially the whole property was owned by late Natthelal Qawwal. In such
manner, a Mosque namely Natthe Khan Ki Masjid came into existence in one
portion of the original larger property, and the disputed property was earmarked as
an another way to the Mosque other than eastern gateway. Thus, the defendants /
petitioners denied title of the plaintiffs / respondents as well as denied the identity
of the property as mentioned in the paragraph 2 of the plaint on the premise of
measurements. Also, the defendants / petitioners have vehemently denied the
succession / vesting of disputed property to the plaintiffs in every mode viz.
intestate, testamentary or gift.
4. On the basis of documents exhibited and the testimony tendered in oral
evidence, the plaintiffs have failed to prove their title on the disputed property.
However, learned Trial Court has decreed the suit of the plaintiffs in an illegal and
arbitrary manner vide judgment and decree dated 15.02.2018. The
defendants/petitioners have preferred Regular First Appeal under Section 96 of
CPC against the judgment and decree dated 15.02.2018 which has been registered
as Regular Civil Appeal No. 13-A/2018 and an application under Order XLI Rule
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27 of CPC has also been filed along with relevant record of Mosque maintained at
Waqf Board, Bhopal wherein area of Natthe Khan Masjid is described as 0.013
hectare in survey No. 746. The respondents / plaintiffs have filed reply to the said
application admitting that Natthe Khan who happened to be predecessor of
plaintiff No.1 Afsana, had donated the land to construct the Mosque thereupon and
so, no open land exists as the Mosque is constructed over the entire donated land.
Furthermore, petitioners / original defendants have filed an application for
injunction under Order XXXIX Rule 1 and 2 of CPC. Reply was also filed by the
respondents. Moreover, the learned lower appellate court has directed to maintain
status quo vide order dated 10.06.2020.
5. Due to non-identification of the disputed property and the stand of
plaintiffs repeatedly and consistently about construction of Mosque over the entire
donated land, an application under Order XXVI Rule 9 of CPC filed by the
petitioners seeking measurement of Mosque and adjacent open land for
appropriate identification, which as dismissed by the Appellate Court has
dismissed vide order dated 27.06.2020 on two grounds: firstly, the application is
filed very belatedly at appellate stage without any explanation for non-filing of
such application before learned trial court and secondly, said application is an
attempt to collect evidence. Being crestfallen by the said order dated 27.06.2020,
present petition has been filed.
6. It has been submitted by learned counsel for the petitioners that the
learned lower Appellate Court has erred in passing the impugned order particularly
in light of the fact that there exists no agreed map in respect of disputed property
on the anvil of measurements, as the same have been denied since inception i.e. by
filing of written statement. It is settled law that where, there is no agreed map
between the parties and there has been allegation of encroachment then in order to
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elucidate the identity and location of the disputed property, the learned Court
ought to issue commission for inspection. It has also been contended that learned
lower Appellate Court has overlooked the dictum laid down by Hon'ble Apex
court in the case of Haryana Waqf Board V/s Shanti Sarup and others reported in
(2008) SCC 671 , therein also, the dispute was regarding demarcation of suit land
for the purpose of identification of the disputed property. Similarly, in present
case, the issuance of Commission as sought by the petitioners for measurement of
Mosque and adjacent open land shall necessarily amount to demarcation in order
to identify the properties. The learned Court below ought to have considered the
facts and circumstances prevalent at the time of adjudication of subject
application, indeed in the backdrop of Waqf Board record. More so, demarcation
and measurement will not ipso facto become evidence. Learned counsel has
placed reliance over the judgment Surya Dev Rai v. Ramchander Rai reported as
(2003) 6 SCC 675 , wherein Hon'ble Apex Court has clearly held that when a sub-
ordinate court has failed to exercise its jurisdiction which it does have or the
jurisdiction though available is being exercised by the Court in a manner not
permitted by law and failure of justice and grave injustice has occasioned thereby.
On the basis of aforesaid argument, it is prayed that the present petition be allowed
and impugned order be set aside.
7. Learned counsel for the respondent vehemently opposed the prayer and
stated the learned Trial Court has passed the order in accordance with law, which
does not required any interference.
8. I have heard the rival submissions made by learned counsel for the
parties and perused the material available on record.
9. Order XXVI Rule 9 of CPC reads as under :-
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"9. Commissions to make local investigations.--
In any suit in which the Court deems a local
investigation to be requisite or proper for the
purpose of elucidating any matter in dispute, or of
ascertaining the market-value of any property, or
the amount of any mesne profits or damages or
annual net profits, the Court may issue a
commission to such person as it thinks fit directing
him to make such investigation and to report
thereon to the court: Provided that, where the State
Government has made rules as to the persons to
whom such commission shall be issued, the Court
shall be bound by such rules."
10. From the aforesaid provision, it is clear that a local Commissioner can
be appointed for either elucidating any matter in dispute, or of ascertaining the
market-value of any property or the amount of any mesne profits or damages or
annual net profits. However, the words "elucidating any matter in dispute" would
not include, collection of evidence. The Court by passing an order under Order
XXVI Rule 9 of C.P.C. cannot delegate its powers of adjudicating the dispute to a
Local Commissioner.
11. This Court in the case of Ashutosh Dubey and another Vs Tilak Grih
Nirman Sashkari Samiti & Another reported in 2004(3) MPLJ 213 has held as
under : -
"Be it a writ of certiorari or the exercise of
supervisory jurisdiction, none is available to
correct mere errors of fact or of law unless the
following requirements are satisfied :-- (i) the error
is manifest and apparent on the fact of the
proceedings such as when it is based on clear
ignorance or utter disregard of the provisions of
law, and (ii) a grave injustice or gross failure of
justice has occasioned thereby. Considering the
aforesaid, it is apparent that the order passed by
the Courts below is without jurisdiction and the
Court below has assumed jurisdiction which was
not vested in it. Once the application under Order
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26 Rule 9, CPC was rejected by the Trial Court on
merits, there was no occasion for the Trial Court
for re-consideration of the aforesaid application on
similar facts. Apart from this, it is settled law that
no such commission may be issued for collecting
the evidence in the case. If the aforesaid order
allowed to remain in existence it will cause serious
injustice to the other side. This Court in Laxman
v. Ramsingh, Civil Revision No. 18 of 1982,
decided on 24-2-1982 (1992 MPWN 255) has
considered similar question held :--
"The prayer for appointment of a Commissioner
was made on the ground that the Commissioner
would be able to see on the spot the crop which is
standing on the suit lands. This according to the
defendant will bring out the truth of his case as
according to him it was gram crop as sown by the
applicant which was standing on it. Learned
Counsel for the non-applicant plaintiff had
submitted that the appointment of Commissioner
as being sought on certain assumptions. He had in
this connection pointed out certain pleadings in
that behalf. The object of local investigation is not
so much to collect evidence for either of the
parties. It is within the discretion of the Court to
order a local investigation or reject the prayer. The
Court below has exercised that discretion by
rejecting that application. In view of the
circumstances, it can not be said that the Court has
committed any error on jurisdiction while rejecting
the application in that behalf."
7. Similar position is here, in this case the prayer
for collecting of the evidence on spot has been
sought through appointment of the commission
which is beyond the scope of Order 26 Rule 9,
CPC. In the circumstances Court below erred in
allowing the application."
12. If the facts of this case are considered, it is clear that the application
filed by the respondents for appointment of Commissioner should not have been
allowed by the Trial Court, as from bare perusal of the prayer made in the
application looking to the contents of the reply to the application, it appears that
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the respondents/plaintiffs are trying to collect evidence through Commissioner at
appeal level, which cannot be allowed.
13. In the upshot of the aforesaid deliberations in entirety, the findings of
learned Appellate Court do not warrant any interference and therefore, the
impugned order dated 27.06.2020 passed by Ist Additional District Judge, Jaora,
District Ratlam (M.P.) in Civil Appeal No. 23-A/2018 is hereby affirmed.
Consequently, present petition stands dismissed.
14. Pending application, if any, stands closed.
(ALOK AWASTHI)
JUDGE
Vindesh
