[Cites 5, Cited by 0]
Madhya Pradesh High Court
Anil Kumar S/O Basantilal Sogani ... vs Piyash on 21 January, 2026
NEUTRAL CITATION NO. 2026:MPHC-IND:1926
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PAVAN KUMAR DWIVEDI
ON THE 21st OF JANUARY, 2026
MISC. APPEAL No. 208 of 2025
ANIL KUMAR S/O BASANTILAL SOGANI DECEASED THROUGH
LRS SMT MADHU AND OTHERS
Versus
PIYASH AND OTHERS
Appearance:
Shri Atishay Dhaker - Advocate for the appellant.
Shri Anuj Bhargava - Advocate for respondents No. and 2.
Reserved on : 01.12.2025
Pronounced on : 21.01.2026.
JUDGMENT
The present appeal under Order 43 Rule 1(u) of the Civil Procedure
Code has been filed challenging the judgment and order dated 12.11.2024
whereby the matter was remanded back to the trial Court with the directions
as contained in para 33 of the impugned judgment.
2. The short facts of the case are that the present appeal has been
filed by the appellant/defendant No.1 who faced challenge in the civil suit
filed by respondents No. 1 and 2 for declaration of title and permanent
injunction against the appellant/defendant No.1 with respect to land situated
at Survey No. 70/1/1/Min 1 admeasuring 0.024 hec. (50 x 50 sq.ft.) total
2500 sq. ft. of Patwari Halka No. 74 in village Tajpura, Tehsil Mahidpur,
District Ujjain. It was stated in the plaint that the suit property was
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purchased by the plaintiffs vide registered sale deed dated 19.02.2015 in
which the four boundaries of the property were described in detail. The
vendor handed over possession of the suit property on execution of the sale
deed. In the east of the said suit land - property of Usha Tembe is situated,
on the west side - property of Munindra Soni is situated, on the north side -
rest of the land of survey No. 70 is situated and on the south side - land of
Manoharlal Khatri is situated. It was averred in the plaint that the seller of
the land i.e. Vardhman Soni had purchased the said suit land in the year 1984
from its earlier owner Basanti Lal, Rajkumar and Tejkumar vide a registered
sale deed pursuant to which his name was also mutated in the revenue
records.
3. The plaintiffs further averred in the plaint that they are in
possession of the suit property since the date of execution of the sale deed
however, the appellant/defendant No.1 tried to dispossess them on
14.10.2015 and 16.10.2015 and for this reason, the original suit came to be
filed before the trial Court by the respondents No. 1 and 2/plaintiffs. The
learned trial Court framed as many as three issues in the matter. The issue
No.1 was with respect to the title and possession of the plaintiffs and issue
No.2 was with respect to interference in the peaceful possession by the
appellant/defendant. The third issue was regarding relief and cost. Both the
substantive issues were decided against the respondent No.1/plaintiff. The
trial Court thus non-suited the respondents No. 1 and 2/plaintiffs vide
judgment and decree dated 23.12.2023.
4. The respondents No. 1 and 2, being aggrieved by the aforesaid
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judgment and decree preferred an appeal before the first appellate Court.
The first appellate Court reversed the findings of the trial Court vide
impugned judgment and order dated 12.11.2024 thereby remanding the
matter back to the trial Court with certain directions as contained in para 33
of the order.
5. The learned counsel for the appellant while criticizing the
impugned judgment and order stated that the basis of remand is the
application filed by the respondents No. 1 and 2 under Order 26 Rule 9.
However, Commissioner cannot be appointed for collection of evidence and
for ascertaining possession of any of the parties. He further points out that in
fact, a Commissioner's report was already available on record which fact has
completely been ignored by the first appellate Court while passing the
impugned order. He further points that on perusal of the plaint filed by
respondents No. 1 and 2, it will be clear that they have stated that on the
north side of the disputed property, rest of the land of same survey number
has been mentioned. Whereas, as per the statement of Ashish Kumar (PW-
1), a public road exists on the north side of suit property. Learned counsel
stated that in view of the same, it is clear that in fact the respondent/plaintiff
himself is not clear about the situation of the plot. He further submits that
the learned trial Court has given proper opportunity to the respective
parties to lead evidence and prove the case and after recording evidence,
findings are recorded and judgment and decree was passed dismissing the
suit of the respondents No. 1 and 2. Now, by remanding the matter back, the
first appellate Court has provided an opportunity to the respondents No.1 and
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2/plaintiffs to fill the lacuna in their case which is not permissible under the
law. He thus submits that remand of the matter is not sustainable in the eye
of law.
6. In support of his submissions, learned counsel for the appellant
has placed reliance on the order passed by this Court on 05.07.2023 in the
case of Smt. Kamla Bai & Ors. vs. Babulal & Ors. in Misc. Appeal No.
1434/2006 and the order passed by the High Court of Madras in the case of
T.K.Krishnamurthy vs. Tamil Nadu Water and Drainage Board, 2006 (5)
CTC 178. Thus, he prays for setting aside the impugned judgment and order
with a direction to the first appellate Court to decide the appeal on merits.
7. Per contra, learned counsel for the respondents No. 1 and 2
submits that in fact the first appellate Court has passed a well reasoned order
for remand. He points out that the issue with respect to commission has
properly been dealt by the first appellate Court in the impugned order. He
further points out that in fact the earlier commission was based on
photographs and not for elucidation of the situation at the spot. Thus, the
same is not reliable. He further points out that earlier commission was at the
stage of decision on an application filed by the plaintiffs under Order 39
Rule 1 and 2. Thus, the said commission was essentially as per the
provisions of Order 39 Rule 7 and not under Order 26 Rule 9. The scope of
these two provisions is completely different. He thus points out that this
contention of the counsel for the appellant is not sustainable. Learned
counsel further submits that in fact an application under Order 26 Rule 9 was
subsequently filed by the applicant only at the stage of temporary injunction.
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Even the defendant himself had filed an application under Order 26 Rule 9
on 04.03.2016 whereas the issues were framed in the matter on 26.03.2019.
Thus, any application filed even before framing of the issues could not have
been entertained for the purposes of Order 26 Rule 9 and it could have been
entertained only for a limited purpose for adjudication on an application filed
under Order 39 Rule 1 and 2 of CPC which can only be treated to be an
application filed under Order 39 Rule 7 of CPC. He further submits that in
fact the issue in hand is an issue regarding dispute of identity of land which
can only be decided by appointment of a Commissioner. Hence, he supports
the findings of the impugned judgment and order and prays for dismissal of
the appeal.
8. Heard learned counsel for the parties. Perused the record.
9. As it can be seen from the proceedings of the case, the issues in
the matter were framed on 26.03.2019. As such, an application filed under
Order 26 Rule 9 before framing of the issues could not have been entertained
as appropriate stage for such application did not arrive till then. Therefore,
the submission of learned counsel for respondents No. 1 and 2 appears to be
correct that those earlier applications were in essence applications under
Order 39 Rule 7. This Court while considering this aspect i.e. the relative
scope of the provisions of Order 26 Rule 9 and Order 39 Rule 7 has held in
the case of Radharani (Smt.) vs. Kamlesh Kumar Kathraya & Ors., ILR
(2018) MP 1408 as under :
"13. From the aforesaid provisions, it is apparent that both the provisions viz.
under Order 26 and Order 39 operate in separate fields. While proceedings
under Order 26 Rules 9 and 10 specifically provide for the procedure to be
adopted for appointment of commissioner and the manner in which the
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commissioner's report is admitted in evidence, on the other hand Order 39 has
its applicability in the matters of temporary injunctions and interlocutory
applications. A plain reading of Order 39 Rules 7 and 8 demonstrates that this
provision can be invoked at any stage of the proceedings even without issuing
notice to the other party as its purpose is to facilitate the court to pass an order
without any delay.
14. It is a trite law that the evidence in a suit is led only after the issues are
framed, whereas an application for temporary injunction is essentially decided
only on the basis of the affidavits filed by the parties. As a natural corollary,
when an application under order 39 rule 7 of CPC is filed at an early stage of
the suit, its only purpose is to allow the court to pass an order to meet a
particular exigency and if the provisions of Order 26 rule 9 and 10 are also
read into the said application under Order 39 rule 7 of CPC and the cross
examination of the Commissioner is also allowed at this stage only, it would
frustrate the very purpose for which the Order 39 rule 7 has been enacted as the
same would lead to unnecessary delay in the commencement of the civil suit.
15. In the considered opinion of this court if at the time of recording the
evidence, the aforesaid report submitted by the commissioner is tried to be
proved as evidence, then only the opposite party may be allowed to cross
examine the said Commissioner. However, at the initial stage when even the
written statement has not been filed by the defendant, to allow him to cross
examination would amount to putting the cart before the horse which cannot be
allowed. So far as the impugned order is concerned whereby the petitioner's
application to cross examine the Commissioner has been rejected on the
ground that the Commissioner has given his report only on the points which
were referred to him, this Court finds that no illegality has been committed by
the learned Judge of the trial Court, however, this Court does not agree with the
reasoning assigned for dismissing the application for cross examination. Thus
the submission made by the learned counsel for the petitioner cannot be
accepted. The proceedings of the trial Court also reveal that the main issue
involved in the case has been conveniently kept at bay by the defendant by not
filing of the written statement."
10. The first appellate Court while considering the issue in hand, has
considered in detail the real dispute involved in the matter and while doing
so, it also referred in detail in para 22 of the impugned order to the
shortcomings of Commissioner's report which was available before the trial
Court. A bare perusal of the findings would show that the earlier
commissioner report was not adequate for identification of the suit property.
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The earlier commissioner had submitted its report based only on
photographs. It could not have been said to be a proper identification of the
suit property. The substance of the dispute as underscored by the first
appellate Court is correctly concluded to be the identification of the land.
Here it has to be kept in mind that in the sale deed as well as plaint, four
boundaries of the suit land are clearly mentioned. As such, the description of
the suit property is definitive and it is only the identification of the same
which is under question.
11. The Hon'ble Apex Court in the case of Zarif Ahmad vs. Mohd.
Farooq, (2015) 13 SCC 673 observed in para 11 as under :
"11. Order 7 Rule 3 of the Code of Civil Procedure, 1908 (for short "CPC"),
which pertains to the requirement of description of immovable property, reads
as under:
"3.Where the subject-matter of the suit is immovable property. Where
the subject-matter of the suit is immovable property, the plaint shall
contain a description of the property sufficient to identify it, and, in
case such property can be identified by boundaries or numbers in a
record of settlement or survey, the plaint shall specify such boundaries
or numbers."
The object of the above provision is that the description of the property must
be sufficient to identify it. The property can be identifiable by boundaries, or
by number in a public record of settlement or survey. Even by plaint map
showing the location of the disputed immovable property, it can be described.
Since in the present case, the suit property has been described by the plaintiff
in the plaint not only by the boundaries but also by the municipal number, and
by giving its description in the plaint map, by no stretch of imagination, can it
be said that the suit property was not identifiable in the present case."
12. In the present case also, the suit property has been prescribed by
the boundaries and even by the survey number, its demarcation, area and
exact size.
13. In fact, the first appellate Court has correctly held in para 29 that
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the dispute essentially is about the identification and boundaries/demarcation
of the suit property and in absence of any admitted map of the area, the only
proper way is to appoint a Commissioner for ascertaining / elucidating the
suit property. Thus, it directed for appointment of Commissioner and
remanded the matter back with as many as 08 directions to the trial Court
which contained appointment of the Commissioner, supplying the report of
the Commissioner, recording of evidence if required and then passing a fresh
order if so needed.
14. The reliance as placed by the learned counsel for the appellant
on the case of Smt. Kamla Bai (supra) is misplaced as the facts of the said
case were different. In the said case the plaintiff had filed suit for
declaration of title and permanent injunction however the documents
exhibited for proving the title were not found to have established the title and
thus, the suit was rejected. However, in appeal, the matter was remanded for
leading evidence for title by referring to certain application filed under Order
16 Rule 1 of the CPC. Thus, this Court held that plaintiff cannot be given
opportunity to fill up the lacuna in the case. However, in the present case the
facts are different, the application was already there filed under Order 26
Rule 9 but it was not considered properly and the dispute is regarding
identity of disputed property, thus the remand order in this case will not
amount to providing opportunity to fill up the lacuna.
15. In the considered view of this Court, there is no perversity in the
impugned judgment/order. Learned counsel for the appellant tried to
establish on merits of case that the respondents/plaintiffs were not able to
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prove the possession and title on the suit property however, in a limited
jurisdiction while hearing an appeal under Order 43 Rule 1(u), this Court
cannot appreciate the merits of the case. The only limited judicial review is
to the validity of remand order and in the considered view of this Court, no
perversity or illegality is found in the impugned order whereby the matter
has been remanded back to the trial Court.
16. As such the appeal is bereft of merits, hence dismissed.
(PAVAN KUMAR DWIVEDI)
JUDGE
vidya
