Vikashchandra Mishra vs State of M.P. and another

The petitioner has filed the present petition under Article 227 of the Constitution of India challenging the order dated 08.08.2016 passed by IVth Civil Judge Class-I, Rewa in Civil Suit No.81A/2016, thereby rejecting the application preferred by the petitioner under Order 26 Rule 9 of the Code of Civil Procedure (hereinafter in short referred to as "the Code").

The petitioner has filed a civil suit for declaration and permanent injunction in respect of the land bearing Khasra No.65/5/Ka having area 1250 sq.ft. and land out of Khasra No.65 area 425 sq.ft. situated village, Khaira, Patwari Circle Nipaniya, Tahsil-Huzur, District-Rewa. The suit was filed on the ground that the defendant No.4 Govind Prasad Patel had sold the land admeasuring 3000 sq.ft. out of Khasra No.65 by a registered sale-deed dated 22.09.1982 to one Bhaiyalal

Soni. Likewise, the defendant No.4 had further sold adjoining land out of Khasra No.65 area 1250 sq. ft. by registered sale deed dated 05.08.1983 to Bhaiyalal Soni. The aforesaid lands purchased by Bhaiyalal Soni were recorded in revenue records. In both the registered sale-deeds, it is specifically mentioned that 5 ft. road on the northern side has been given by the defendant No.4 out of is own land as "approach road".

Bhaiyalal Soni vide sale-deed dated 05.02.1991 has sold the land admeasuring 1250 sq.ft. to the plaintiff. In both the aforesaid sale-deeds 5 ft. road on the northern side is specifically mentioned. The other 3000 sq.ft of the land which was purchased by Bhaiyalal Soni was sold to Smt. Kanya Singh by registered sale-deed dated 22.04.1991. Defendants No.1 and 2 after purchase of aforesaid land started raising construction over the road and also on the land which the plaintiff purchased vide registered sale-deed dated

05.02.1991. Likewise, the defendant No.3 also started raising construction over the said land, which was part of land belonging to the plaintiff. The plaintiff has filed the present civil suit for declaration and permanent injunction. During pendency of the said civil suit, the plaintiff has filed an application under Order 26 Rule 9 of the Code for demarcation of the land. The defendants No.1 to 3 have filed the reply to the said application and the defendants No.1 and 2 has also filed an application under Order 26 Rule 9 of the Code for demarcation, which they have purchased by a registered sale-deed dated 13.10.2005. The trial Court vide order dated 08.08.2016 dismissed both the applications filed by the petitioner as well as by the defendants No.1 and 2 on the ground that the plaintiff cannot be permitted to collect the evidence under Order 26 Rule 9 of the Code. Being aggrieved by that order, the petitioner has filed the present petition.

Learned counsel for the petitioner submits that the trial Court has erred in rejecting the application submitted by the petitioner under Order 26 Rule 9 of the Code. It is submitted that both petitioner as well as the defendants No.1 and 2 have filed an application under Order 26 Rule 9 of the Code.

Thus, both agrees that there is serious dispute of boundaries between the parties, therefore, in such circumstances, the trial Court should have allowed the application preferred by the petitioner under Order 26 Rule 9 of the Code. It is submitted that the boundaries dispute between the parties can be resolved by spot inspection i.e. by appointment of the Commissioner. It is further argued that the trial Court has erred in rejecting the application on the ground that the application has been filed by the parties for collecting the evidence. In support of his submission, learned counsel for the petitioner has relied on the decision in the case Durga Prasad Vs. Parveen Foujdar and others , 1975 JL J 440 and Haryana Waqf Board Vs. Shanti Sarup and Others ,

(2008) 8 SCC 671.

On the other hand, learned counsel for the respondents supports the order passed by the trial Court. It is submitted that the application for temporary injunction is pending before the trial Court and in reply to the said application, the respondents No.1 and 2 have filed a map which clearly demonstrate the situation of spot. Therefore, appointment of the Commissioner is not necessary in the present case. It is further submitted that the respondents No.1 and 2 have also filed an application under Order 26 Rule 9 of the Code and the said application is also rejected by the trial Court. It is submitted that the trial Court vide order dated 08.08.2016 holds that there is a dispute between the parties with regard to possession of the suit property and as per pleading inspection was sought with regard to possession and construction by the parties over their respective land and thus, both the parties have prove their case and no commission can be issued to collect the evidence for aforesaid parties and therefore, the trial Court has rightly the dismissed the application preferred by the petitioner.

Heard learned counsel for the parties and perused the record as well as the order passed the trial Court. From perusal of the pleadings made in the plaint, it appears that there is a serious dispute regarding boundaries of the disputed land. The petitioner therefore filed an application under Order 26 Rule 9 of the Code for appointment of the Commission. However, the trial Court has dismissed the said application of the ground that the same has been filed to collect the evidence. Division Bench of this Court in the case of Durga Prasad (supra) in paragraph-25 has held 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."

Similarly the Apex Court in the case of Haryana Waqf Board (supra) has held that when there is a controversy between the parties regarding demarcation of the suit land because the land of the respondent was adjacent to the suit land and therefore, the Court should have allowed the application for appointment of the Commissioner for demarcation of the suit land.

Thus, in the light of aforesaid judgment when there is a dispute regarding demarcation of the land then appointment of local Commissioner for demarcation of suit land is necessary and also it is to be noted that in the present case, the respondent has also filed a similar application for making the same prayer for appointment of the Commissioner.

In view of aforesaid, the present writ petition is allowed.

The impugned order dated 08.08.2016 passed by the trial Court is hereby set aside. The trial Court is further directed to appoint local Commissioner for demarcation of the suit

land. The expenses of the Commissioner will be borne by both the parties.