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2015 DIGILAW 881 (MP)

Ritesh Jain v. Gopal Singh

2015-08-24

SUJOY PAUL

body2015
ORDER 1. This petition filed under Article 227 of the Constitution takes exception to the order dated 14.7.2014 whereby the application preferred by the petitioners/defendants No.2 and 3 under Order 26 rule 9 CPC is rejected by the Court below. 2. Shri S.K. Shrivastava, learned counsel for the petitioners, submits that respondent /plaintiff filed a suit for permanent injunction. In turn, the written statement was filed. Thereafter in view of pleadings of the parties, application under Order 26 rule 9 CPC was filed. This application should have been allowed by the Court below. In support of his submission, he relied on certain judgments. 3. Prayer is opposed by Shri Vivek Jain, Advocate for the respondents, he submits that a plain reading of written statement and application Annexure P-6 shows that survey No.64 is admittedly a Government land. A “Nala” is situated in survey No.64. Thus, there is no dispute in relation to survey No.64. Hence, there is no justification for issuing commission for survey No.64. The second relief claimed in said application is relating to survey No.72/1. He submits that this prayer amounts to permission of collection of evidence which is impermissible. 4. I have heard the parties at length and perused the record. 5. A plain reading of Annexure P-6 shows that it is clear stand of petitioner that survey No.64 is a Government land. It is the stand of the defendants that they have not made any encroachment in the said land. In para 3, the petitioners have stated that they have not encroached any part of the land of survey No.72/1. However, they contended that plaintiff himself has encroached over the survey No.64 which relates to Government Nala. In the injunction suit the relief is claimed that defendants be restrained from taking possession on Survey No.72/1. 6. In paras 1 and 2 of the plaint it is mentioned that survey No.72/1 is adjacent to survey No.64, 65 and 66. Defendants are trying to encroach the Nala and survey No.72/1. Since no relief is claimed in relation to survey No.64, which is even otherwise a Government land, there is no need to pass any order for appointment of Commissioner in relation to survey No.64. So far survey No.72/1 is concerned, parties have taken a diametrically opposite stand before the Court below. Plaintiff contended that there exists an encrochment by the defendant whereas defendant denied the same. So far survey No.72/1 is concerned, parties have taken a diametrically opposite stand before the Court below. Plaintiff contended that there exists an encrochment by the defendant whereas defendant denied the same. In 1975 JLJ 440 (Durga Prasad v. Praveen Foujdar and others) a Division Bench of this Court opined that 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 Commissioner under Order 26, rule 9 of the CPC. The same view is taken by this Court in 2007(2) JLJ 383 =2007(3) MPLJ 419 (Mohit Bhargava v. Bharat Bhushan Bhargava and others). 7. Considering the aforesaid, in my view, the Court below has committed an error in not directing the appointment of Commissioner in relation to survey No.72/1. Direction of appointment of Commissioner would not amount to exercise of collection of evidence. Resultantly, impugned order dated 14.7.2014 is partly set aside to the extent prayer ¼c½ of Annexur P-6 was disallowed. The application under Order 26 rule 9 CPC (Annexure P-6) is partly allowed to the extent of relief ¼c½ The Court below is directed to appoint an appropriate revenue officer to undertake aforesaid exercise of submission of report in relation to relief ¼c½ Petition is partly allowed. No costs.