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Madhya Pradesh High Court · body

2012 DIGILAW 815 (MP)

Beejanwala Talukdar v. Radhakrishna Rai

2012-08-24

ALOK ARADHE

body2012
JUDGMENT 1. This appeal is by the plaintiff. The appeal was admitted on following substantial question of law : “Whether the suit could have been dismissed without issuance of Survey Commission to fix up the identity of the disputed land?” 2. Facts giving rise to filing of the appeal briefly stated are that the appellant had filed the suit on the ground that he is the owner of the land admeasuring 1,500 square feets forming part of Khasra No.32 which was purchased by him by registered sale-deed dated 20.8.1971. However, the defendants No.1 and 2 encroached part of the suit land mentioned with the letters A,B,C,D in the plaint map. Thereupon, the plaintiff filed the suit seeking a relief of declaration and possession. The defendants No.1 and 2 filed the written statement in which inter alia, it was pleaded that defendant No.2 had purchased the land forming part of Khasra No.32 on 20.1.1976. It was pleaded that the land purchased by the plaintiff has been acquired for construction of by-pass road and the defendants are in possession of the land purchased by them. 3. The trial Court vide judgment and decree dated 27.1.1998 dismissed the suit filed by the plaintiff. In appeal the aforesaid decree was affirmed. 4. Learned counsel for the appellant submitted that the Courts below committed an error of law in dismissing the suit filed by the appellant without appointment of the Commissioner. The dispute in the suit pertains to encroachment and therefore, the same could not have been decided without appointment of Commissioner. In support of his submission, learned counsel for the appellant placed reliance on the decision of the Supreme Court in the case of Haryana Waqf Board and others v. Shanti Sarup and others [2009(I) MPWN 9= (2008)8 SCC 671 ]. 5. I have considered the submissions made by the learned counsel for the appellant and have perused the record. 6. The appellant in the plaint has stated that defendants No.1 and 2 have taken possession of the land belonging to him which has been marked with letters A,B,C,D which forms part of Khasra No.32. On the other hand, defendants No.1 and 2 in the written statement have denied the factum of encroachment and have stated that they are in possession of the land which has been purchased by the defendant No.2 on 20.1.1976 which forms part of Khasra No.32. On the other hand, defendants No.1 and 2 in the written statement have denied the factum of encroachment and have stated that they are in possession of the land which has been purchased by the defendant No.2 on 20.1.1976 which forms part of Khasra No.32. There is no agreed map. In the absence of any agreed map, the trial Court could not have decided the issue of encroachment. {See Haryana Waqf Board and others v. Shanti Sarup and others [2009(I) MPWN 9=(2008)8 SCC 67]}, and decision of Division Bench of this Court in the case of Durga Prasad v. Parveen Foujdar and others [1975 JLJ 440= 1975 MPLJ 801 ]. For the aforementioned reasons, the substantial question of law framed by this Court is answered in negative and in favour of the appellant. 7. Consequently, the judgment and decree passed by the trial Court as well as by the lower appellate Court are set aside. The matter is remanded to the trial Court to appoint a Commissioner under Order 26 rule 9 of the Civil Procedure Code to ascertain the factum of encroachment and thereafter, to decide the suit expeditiously in accordance with law preferably within a period of six months from the date of appearance of the parties. Let the record of the Courts below be immediately sent back. 8. Accordingly, the appeal is disposed of. .........