Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 1115 (MP)

Shaitanmal v. Gangaram

2017-11-01

VIVEK RUSIA

body2017
ORDER 1. The petitioner has filed the present petition being aggrieved by the order dated 25.1.2017 by which his oral objection in respect of the Commissioner’s report has been rejected. The present petitioner being a plaintiff filed the suit for declaration and permanent injunction in respect of land survey No. 833.900 RA that he be declared owner of the said land and defendant be restrained not to interfere in his possession. The suit was filed on 8.10.2011. The defendant filed the written statement denying the averment made in the plaint by contending that they are owner of the land Survey No.980-981 and the land of the plaintiff i.e. survey No. 833 has been acquired by the State Government for public purpose. 2. The respondent filed an application under Order 26 rule 9 of CPC regarding appointment of Commissioner for spot inspection which was dismissed by the trial Court vide order dated 23.1.2012. The respondent No.1 filed the Writ Petition No.1868/2012 vide order dated 29.2.2012. The Writ Petition was allowed with liberty to the respondent to file a fresh application. Thereafter the present petitioner filed the review petition bearing R.P. No.425/2015 by which the order dated 29.2.2012 has been modified to the effect that the petitioner may file an application after recording evidence, thereafter the petitioner submitted an objection that the demarcation has already been taken place. There is no need for demarcation. Learned trial Court vide order dated 1.5.2012 allowed the application filed under Order 26 rule 9 of CPC filed by the respondent No.1 and appointed Superintendent of Land Record, Ratlam as Commissioner, who submitted the report dated 7.7.2014, thereafter the petitioner filed Writ Petition No. 529/15 against the order dated 1.5.15, 27.03.14 and 7.7.2004. vide order dated 11.1.2017 the Writ Petition has been dismissed as withdrawn. The order is reproduced below : “11.1.2017 Mr. Vikas Rathi, learned counsel for the petitioneer. Mr. Brijesh Garg, learned counsel for the respondents. After hearing the matter at length, learned counsel for the petitioner prays for withdrawal of the present writ petition with liberty to exercise his right as granted in Review Petition No. 435/2013 vide order dated 30.10.2013 to file an appropriate application for appointment of Commissioner after evidence of both the parties are over. Brijesh Garg, learned counsel for the respondents. After hearing the matter at length, learned counsel for the petitioner prays for withdrawal of the present writ petition with liberty to exercise his right as granted in Review Petition No. 435/2013 vide order dated 30.10.2013 to file an appropriate application for appointment of Commissioner after evidence of both the parties are over. It is further directed that since the suit is pending for more than five years, therefore, the trial Court is directed to make an endeavor to decide the suit within a period of six months. With the aforesaid facts, this petition stands dismissed as withdrawn. 3. After submitting the report by the Commissioner the petitioner raised oral objection that the report is not proper and the fresh report be obtained in respect of the Survey No. 980, 981 and 832. The learned trial Court vide order dated 25.1.2017 has rejected the oral objection on the ground that the plaintiff may cross-examine the Commissioner in respect of validity of the report. Being aggrieved by the order dated 25.1.2017 the petitioner has filed the present petition before this Court. 4. I have heard learned counsel for the parties at length. It is settled law that provision of Order 26 rule 9 cannot be used to collect the evidence. The plaintiff is required to prove his case by way of evidence. By the order of this Court learned trial Court has directed the Commissioner to submit the report. The report of Commissioner has been taken on record. If the petitioner is having any objection to the report the learned trial Court has already given him liberty to cross-examine the Commissioner. The petitioner is a plaintiff and he is required to prove his case by way of evidence. He cannot depend on the report given by the Commissioner. 5. Learned trial Court has rightly passed the order dated 25.1.2017. No case is made out for interference in the writ petition under Article 227 of the Constitution of India. The petition is accordingly dismissed.