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2014 DIGILAW 780 (MP)

Kanchan Batham v. Vinay Kumar Bairagi

2014-07-08

S.R.WAGHMARE

body2014
JUDGMENT S.R. Waghmare, J. 1. By the Second Appeal under Section 100 of the CPC the appellant Kanchan Batham has challenged the judgment and decree dated 20.8.2008 passed by the IIIrd Additional District Judge, Shivpuri in Civil Appeal No. 3-A/08 confirming the judgment and decree passed by the trial Court in Civil Suit No. 63-A/06. 2. The facts in a nutshell are that the plaintiff appellant Kanchan Batham had filed a suit stating that he was the owner of agricultural land and for the purpose of transport and for bringing the plough, bullocks and tractors in the east side of AB road, there was a road which was 25 ft. wide and used by the plaintiff for 25-30 years. The road was in the form of medh constructed at survey No. 285 that to the north, and Bhawani Shankar had constructed a house on survey No. 287 and to the south, the respondent defendant had his agricultural land; that the plaintiff was the owner of survey No. 287 also and from the main gate in the west till the east 140 ft. long road with the width of 25 ft. was being used by the plaintiff uninterruptedly for agricultural as well as transport purposes. Thus he had acquired easementary rights whereas defendant No. 1 Vinay Kumar Bairagi was trying to oust the plaintiff from the said land. The plaintiff claimed permanent injunction stating that the road should be reflected in the revenue records as belonging to the plaintiff. The trial Court however on considering the rival contentions and the evidence available on record dismissed the suit. The appellate Court also upheld the findings and hence the present appeal. 3. Counsel for the appellant has vehemently urged the fact that both the Courts below had erred in dismissing the suit of the plaintiff when the land was being used consistently for more than 25-30 years by the plaintiff uninterruptedly. Moreover Counsel contended that if the Court was dissatisfied with the evidence regarding the road inexistence of survey No. 285 both the Courts below ought to have appointed a Commissioner to resolve the controversy whereas without perusing the map Ex. P/15 the appellate Court had also erred in dismissing the suit. Counsel relied on a judgment of this Court in the matter of Jaswant Vs. P/15 the appellate Court had also erred in dismissing the suit. Counsel relied on a judgment of this Court in the matter of Jaswant Vs. Deen Dayal, 2011 (3) M.P.H.T. 422 whereby this Court held that when there was a border dispute about the land between the parties, it was the duty of the Court itself to appoint a commissioner to get the land demarcated and whereas the defendant's application under Order 26 Rule 9 of the CPC was wrongly rejected by the trial Court and the First Appellate Court committed the same error by not allowing the said application. In the said case this Court had set aside the judgment and decree of both the Courts below and remanded the matter to the trial Court to appoint a commissioner for demarcation of the property in dispute. Counsel submitted that in the present case also the application for appointment of a Commissioner has been rejected by the trial Court and upheld by the appellate Court. Counsel also relied on Haryana Waqf Board Vs. Shanti Sarup and others, (2008) 8 SCC 671 whereby the appellate Court had held that the controversy between the parties was regarding demarcation of land and because the parties had adjacent lands and the Court held that the second appeal should not have been dismissed summarily and Local Commissioner ought to have been appointed for demarcation of land. Counsel for the appellant, therefore, stated that there was ample material on record to indicate that the dispute regarding the easementary right existed between the parties and the Commissioner ought to have been appointed by both the Courts below straight away and in this light also this appeal be allowed. 4. Counsel for the respondents, however, fully supported the impugned judgment passed by the Court below. Counsel for the respondent No. 1 vehemently urged the fact that the appointment of a Commissioner was not at all called for in the circumstances and an appointment of the Commissioner was always to the subjective satisfaction of the learned Judge. Counsel urged that there is a concurrent finding of the fact in favour of the respondents and no substantial questions of law arises in this appeal. Counsel prayed that the appeal be dismissed. 5. On considering the above submissions, I find that no substantial questions of law arises for decision in this appeal. Counsel urged that there is a concurrent finding of the fact in favour of the respondents and no substantial questions of law arises in this appeal. Counsel prayed that the appeal be dismissed. 5. On considering the above submissions, I find that no substantial questions of law arises for decision in this appeal. The questions proposed by the appellant pertain to non consideration of evidence and are based purely on facts. Besides when the facts of the case and the impugned judgments are considered, I find that the learned Judge of the trial Court as well as the appellate Court have categorically found that the land belong to the State Government in impugned para-22 of the trial Court judgment, the learned Judge of the trial Court has categorically stated that the disputed land bearing survey No. 285 was a government land and neither the respondent No. 1 nor the plaintiff had any right over the same. Similarly the Tehsildar as well as the SDO were put under political pressure to state that they were closing the road whereas an actual fact it was not shown on the map. Besides the plaintiff had failed to prove with material evidence that the plaintiff had possession over the disputed land for more than 20 years. No fruitful purpose would be served in remanding the matter since the Court also held that the plaintiff had failed to prove that there was any road existing on survey Nos. 285, 288 or between survey Nos. 285 & 287. The appellate Court also found that survey No. 285 belongs to the government and the temple standing on survey No. 285 was being managed by the Collector Shivpuri and merely because the plaintiff had appended the road in the map and planted some trees on it would not give him the rights of owner. Similarly there was discrepancies in the testimony of the plaintiff as well as defendants No. 1 & 2 and there was no concrete evidence regarding the road being used by the bhumi-swami for more than 20 years as is being claimed. Similarly there was discrepancies in the testimony of the plaintiff as well as defendants No. 1 & 2 and there was no concrete evidence regarding the road being used by the bhumi-swami for more than 20 years as is being claimed. Finally after giving my anxious consideration that the application for appointment of the Commissioner was rejected by both the Courts below; I find that this Court has in the matter of Suryabhan Singh vs. State of Madhya Pradesh, MPWN 2006 (3) 125, Note-42 categorically held that the provisions under Order 26 Rule 9 are purely discretionary and if the prior for appointment of the Commissioner was an after thought and meant for collecting evidence it was rightly rejected by the trial Court. In the present case also the evidence was not sufficient to establish the claim of the plaintiff, then merely to produce the desired evidence, a Commissioner cannot be appointed. This Court had relied on AIR 1989 Orissa 118, 2002 (1) MPWN 105 and placing reliance on the same, I find that there is no infirmity in the judgment of both the Courts below. Similarly no substantial questions of law arises for consideration in the appeal. The questions proposed by the appellant are based on facts and are not pure questions of law. Hence the appeal is summarily dismissed as being without merit.