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2018 DIGILAW 346 (MP)

Kishan Singh Yadav v. Mohar Bai Rajput

2018-03-22

ANAND PATHAK

body2018
ORDER 1. With consent, heard finally. 2. The present petition under Article 227 of the Constitution of India has been preferred by the petitioner against the order dated 23.8.2017 (Annexure P-1) passed by II Civil Judge, Class-I, Vidisha in Civil Suit No. 61-A/2017 whereby application under Order XXVI rule 9 CPC preferred at the instance of petitioner/ plaintiff has been rejected. 3. It is the case of the petitioner that a civil suit seeking permanent injunction in respect to the land referred in the plaint has been filed before the trial Court with the allegations that defendant No. 1 wants to construct the house in the area of the petitioner. Defendant No. 1 filed written statement and pleaded that her house is situated within her area and she is not encroaching over the land of the plaintiff. It is stated by her that whatever constructions is made, it is constructed strictly in the area of the defendant only. To resolve the controversy petitioner/ plaintiff moved an application under Order XXVI rule 9 CPC which was rejected by the trial Court and therefore, petitioner is before this Court. 4. According to counsel for the petitioner, once it is pleaded by the petitioner/ plaintiff that respondent No. 1/ defendant is encroaching the land by claiming the area of 4 ft. 6 inch. therefore, in order to ascertain the boundaries of the plaintiff vis-a-vis (Kishan Singh Yadav v. Smt. Mohar Bai Rajput and another) defendants, it is in the interest of both the parties as well as in the interest of justice that a commissioner be appointed so that dispute can be settled between the parties once and for all. He relied upon the judgment of this Court in the case of Keshav Singh v. Dhanto Bai and others [ 2009 (1) MPJR 162 ]. 5. Learned counsel for respondent No. 1 opposed the prayer made by the petitioner and submits that the trial Court rightly passed the impugned order because there is no dispute in respect of the boundaries. If the allegations of the petitioner are seen then it indicates the intention of the defendant No. 1 to encroach upon the land and the intention cannot be ascertained through commissioner report. Respondent/defendant No. 1 has categorically denied the claim of the plaintiff that she is encroaching upon the land. If the allegations of the petitioner are seen then it indicates the intention of the defendant No. 1 to encroach upon the land and the intention cannot be ascertained through commissioner report. Respondent/defendant No. 1 has categorically denied the claim of the plaintiff that she is encroaching upon the land. Defendant No. 1 is within her own boundaries and limits where the constructions has been made. Attempt of the petitioner through application under Order XXVI rule 9 CPC amounts to collection of evidence. He relied upon the judgment of this Court in the case of Ashutosh Dubey and Another v. Tilak Grih Nirman Sahkari Sanstha and another [ 2004 (3) MPLJ 213 ]. 6. Heard the learned counsel for the parties and perused the record. 7. Here the matter pertains to dispute regarding boundaries where plaintiff asserts the attempt of encroachment by the defendant and defendant denies the same. The case in hand pertains to injunction only and not of title or possession. In other words, ownership of the parties are not in dispute. Only dispute is in respect of presence of alleged intention. If the allegations and apprehension of the plaintiff gains ground, then it would be of far reaching effect because in that condition, plaintiff would have to mold his relief for possession also whereas, if the allegations of the plaintiff are without any basis then no irreparable loss would be (Kishan Singh Yadav v. Smt. Mohar Bai Rajput and another) caused to the defendant because by that time, stand of defendant No. 1 would stand vindicated that she has not encroached upon the land of the plaintiff. In either of the condition, controversy would be resolved conclusively and for that commissioner's report appears to be imperative and that is to be brought on record for demarcation of the respective boundaries. 8. The Division Bench of this Court in the case of Keshav Singh, (supra) has held that application for appointment of the commissioner under Order XXVI rule 9 CPC can be made at any point of time in the suit proceedings. Therefore, even if the injunction application is not decided in the case, it does not adversely affects filing of the application for appointment of the commissioner. This is a fit case for interference under Article 227 of the Constitution of India. 9. Therefore, even if the injunction application is not decided in the case, it does not adversely affects filing of the application for appointment of the commissioner. This is a fit case for interference under Article 227 of the Constitution of India. 9. The judgment relied upon by respondent No. 1 is of no help as binding precedent to him because in the present case, commissioner has not been intended to be appointed for ascertaining the possession of the property. Both the parties on the basis of sale deed are in possession of their respective properties. 10. Resultantly, the impugned order dated 23.8.2017 (Annexure P-1) passed by II Civil Judge, Class-I, Vidisha in Civil Suit No. 61-A/2017 is hereby set aside and application for appointment of commissioner under Order XXVI rule 9 CPC is hereby allowed. Parties are directed to appear before the trial Court on next date of hearing and seek necessary guidance for further consequential follow up action. Thus, the petition stands allowed and disposed of in above terms.