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Madhya Pradesh High Court · body

2011 DIGILAW 881 (MP)

Premlata Jain v. Mandakini Gupta

2011-08-05

N.K.MODY

body2011
ORDER 1. Being aggrieved by the order dated 18.8.2010 IVth Civil Judge Class II, Indore in Civil Original Suit No. 363-N09, whereby application filed by the petitioner under Order 18 Rule 18 Order 26 Rule 9 read with section 151 CPC was dismissed, present petition has been filed. 2. Short facts of the case are that respondent filed a suit for permanent injunction alleging that respondent has owned and is in possession of Plot No. 70 situated at Sanchar Nagar Extension, Indore measuring 1800 Sq ft. The suit was contested by the petitioner alleging that the plot in dispute is bearing no. 72 and not 70. During trial an application was filed praying for spot inspection. The application on was dismissed, against which present petition has been filed. 3. Learned counsel for the petitioner submits that since the identity of the suit plot is in dispute, therefore, the best course which ought to have been adopted by the learned Court below was to appoint Commissioner. In support of this contention reliance has been placed on a decision of Kerala High Court in the matter of Payani Achuthan v. Chamballikundu Hariian Fisheries Development Cooperative Society & Ors. reported in AIR 1996 Ker. 276 , wherein the application was for measurement and demarcation of land. Kerala High Court held that :- "In a suit for injunction to restrain the defendants from interfering with the possession due to alleged encroachment into the land of plaintiff, one of the methods to find out as to whether or not there is encroachment is to have the local investigation done by a competent Commissioner. The Court cannot prevent a party from adducing the best evidence, if such evidence can be gathered with the help of a Commissioner. Refusal of the request of the party to appoint a Commissioner under O. 26, R. 9 CPC to make a local investigation in an appropriate case amounts to failure of exercise of jurisdiction vested In it. The plaintiff filed a suit for permanent injunction restraining defendants from entering into plaintiffs land. He filed an application therein for appointment of local commissioner for measurement and demarcation of land. Held, that the same was entitled to be allowed and could not have been refused." 4. Reliance has further been placed on a decision in the matter of Veneu Gopal Tari & Ors. v. Nilconta S. Xeto & Ors. He filed an application therein for appointment of local commissioner for measurement and demarcation of land. Held, that the same was entitled to be allowed and could not have been refused." 4. Reliance has further been placed on a decision in the matter of Veneu Gopal Tari & Ors. v. Nilconta S. Xeto & Ors. reported in AIR 1971 Goa, Daman & Diu 32, wherein it was held that :- "Where there is a dispute as regards the identity of the suit property allegedly bearing two different registration numbers, the trial Court should appoint a Commissioner preferably a trained surveyor to examine whether the property bearing two different numbers is in fact the same." 5. Learned counsel for the petitioner submits that in the facts & circumstances of the case the petition filed by the petitioner be allowed and the impugned order passed by the Court below be set aside. 6. Learned counsel for the respondent on the other hand submits that the application it self is premature. Learned counsel submits that whether the suit plot is bearing No. 70 or 72 can be proved by adducing evidence and not by spot inspection. It is submitted that the petition be dismissed. 7. After taking into consideration the facts and circumstances of the case and keeping in view the settled position of law arid also keeping in view that the disputed land is a plot situated in a developed colony, this Court is of the view that the fact whether the plot in dispute bears plot No. 70 or 72 can be proved by adducing the evidence i.e., record of the Society, layout plan passed by the Town & Country Planning, record of the Municipal Corporation etc and not by spot inspection. Even if after adducing evidence by both the parties the petitioners is of the view that the spot inspection will be further evidence in favour of the petitioner then at that stage petitioner shall be at liberty to move an appropriate application which shall be decided in accordance with law. 8. With the aforesaid observations the petition is disposed of.