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2020 DIGILAW 350 (MP)

Chief Municipal Officer v. Muhammad And Others

2020-03-03

VIVEK RUSIA

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JUDGMENT Vivek Rusia, J. - This is an appeal filed by the defendant against the judgment and decree dated 30.11.2000 passed in Civil Suit No. 280-A/1996 by the Civil Judge, Class II Garoth affirmed by judgment dated 20.09.2002 passed by the Additional District Judge, Garoth in C.A. No. 1-A/2001. 2. Facts of the case in short are to the effect: The respondent no.1, 2 and 3 being plaintiffs filed a suit for permanent injunction against the present appellant and the State of M.P. being aggrieved by the notices dated 17.08.1995 and 23.08.1995 issued by the defendant no.1. According to the plaintiff, they are real brothers and residing jointly in Village Shyamgarh Mandi. They are owner and occupier of a piece of land which was given on lease by the Department of Industries and Business, State of M.P. vide Exhibit P-5(c) dated 04.11.1955 for the purpose of construction of petroleum godown. The plaintiffs have established petroleum and diesel retail outlet after obtaining permission from the then Gram Panchayat, Shyamgarh. The plaintiffs are running retail outlet in the name of M/s Haji Mulla Hibtullahbhai Khanbhai & Sons. In the year 1994-95, plaintiffs applied in the nagar Parishad for permission to construct office building. That vide order dated 17.11.1994, Parishad has granted the permission. Against the aforesaid permission, appeal was preferred before the Collector, Distt. Mandsaur by one complainant and initially stay was granted by the Collector. Later on, the said appeal was dismissed by order dated 10.03.1997 vide Exhibit P-14(c) and the order dated 17.11.1994 of building permission has been affirmed. After obtaining permission, appellant has constructed the outlet on the aforesaid suit land. 3. According to the plaintiffs, the Tehsildar issued notices dated 17.08.1995 and 23.08.1995 alleging that plaintiffs have encroached the Government land for construction of office building which gave them cause of action for filing a suit for permanent injunction against appellant and respondent no.4. 4. After receipt of summons, the present appellant filed written statement alleging that the plaintiffs have encroached the government land bearing Survey No. 424/1 and constructed a new sales office. The defendant no.1 admitted the building permission dated 17.11.1994 issued in favour of the plaintiffs. On the basis of complaint made by Amarnath, a notice dated 17.08.1995 was issued to the plaintiffs to submit documents pertaining to the ownership. The defendant no.1 admitted the building permission dated 17.11.1994 issued in favour of the plaintiffs. On the basis of complaint made by Amarnath, a notice dated 17.08.1995 was issued to the plaintiffs to submit documents pertaining to the ownership. The defendant no.2, State Government has also filed written statement by submitting that the land bearing Survey No. 424/1 is a Nazool Land and the remaining averments are not related to the defendant no.2. 5. On the basis of pleadings, the trial Court framed five issues for adjudication. The plaintiff examined Mohd Hussain as PW-1 and got exhibited 14 documentary evidence as Exhibit P-1 to P-14. The defendant no.1 examined Mohanlal Patwari and got exhibited the Khasra Panchshala of the year 1981. 6. After appreciating the evidence came on record, vide judgment and decree dated 30.11.2000, learned Civil Judge has decreed the suit in favour of the plaintiffs by restraining defendants to interfere into the peaceful possession and not to remove the construction by illegal manner. While decreeing the aforesaid suit, learned Civil Judge has also held that the plaintiffs were allotted the land by the Government and thereafter they constructed the Petrol and Diesel Retail Outlet after due permission. The defendants have failed to prove that the plaintiffs have encroached over the government land. The building permission has been approved by the Collector vide order dated 10.03.1997 Exhibit P-14. Hence, the plaintiffs are entitled for the relief of permanent injunction. 7. Being aggrieved by the aforesaid judgment and decree, the defendant no.1 preferred the first appeal No. 1-A/2001 and the State Government preferred the F.A. No. 2A/2001. Vide judgment dated 20.09.2002, the first appellate Court has dismissed both the appeals and now only defendant no.1 has preferred the present appeal before this Court. Vide order dated 07.03.2003, this Court has admitted the appeal on the following substantial questions of law: (I) Whether the Lower Appellate Court was justified in confirming the decree passed by the Trial Court granting injunction in favour of the plaintiff? (II) In view of the controversy involved in the suit viz. Extent of encroachment of land by plaintiff on the Government's land, was it no obligatory on the Courts below to have appointed a Commissioner by invokation of Order 26 Rule 9 CPC as laid down by the D.B. of this Court in the case Durga Prasad Vs. (II) In view of the controversy involved in the suit viz. Extent of encroachment of land by plaintiff on the Government's land, was it no obligatory on the Courts below to have appointed a Commissioner by invokation of Order 26 Rule 9 CPC as laid down by the D.B. of this Court in the case Durga Prasad Vs. Parveen Foujdar and others, 1975 MPLJ 801 and the decide whether a case for injunction is made out or not? (III) Whether the Lower Appellate Court was justified in rejecting the application made by the defendant (Appellant) for appointment of Commissioner as required under Order 26 Rule 6 CPC for determination of encroachment as to what extent it is existed and second on what land? 8. Shri T.N. Singh, learned Sr. counsel appearing on behalf of the appellant submits that the trial Court as well as the first appellate Court both have committed grave error of law while rejecting the application filed under Order 26 Rule 9 CPC. It is settled law that where the issue of encroachment is there in the civil Court, the Court must appoint the commission to visit the spot and submit the report. The defendants have specifically alleged that the plaintiffs have encroached the government land and made construction of new sales office and which could have been verified only by appointing the commission. In support of his contention, he has placed reliance over the judgment passed by full Bench of this Court in the case of Durga Prasad (supra) 340. Therefore, both the judgments and decrees are liable to be set aside and matter be remitted back to the trial Court to decide the same afresh after obtaining the spot inspection report. 9. Shri M.A. Bohra, learned counsel appearing for the plaintiffs/respondent argued that provision of Order 26 Rule 9 CPC cannot be invoked for collecting the evidence in the case. The defendant/appellant came up with the plea that the plaintiffs have encroached over the Government land and, therefore, the burden was upon defendants to establish the same by way of evidence. The parties cannot be permitted to use the provision of Order 26 Rule 9 CPC to collect the evidence. Hence, both the Courts below have rightly rejected the application under Order 26 Rule 9 CPC. In support of his contention, he has placed reliance on the judgment of Anappa Mestha Vs. The parties cannot be permitted to use the provision of Order 26 Rule 9 CPC to collect the evidence. Hence, both the Courts below have rightly rejected the application under Order 26 Rule 9 CPC. In support of his contention, he has placed reliance on the judgment of Anappa Mestha Vs. Mutayyaachari,2002 3 LAWS(KAR) 55 and also in the case of Ashutosh Dubey and another Vs. Tilak Grih Nirman Sahkari Samiti and another, 2004 3 MPLJ 213 . He further argued that both the Courts below have decreed the suit and dismissed the appeal by way of concurrent findings which cannot be upset by the High Court unless such findings are shown to be perverse, as held by the Hon'ble Apex Court in the case of Laxmidevamma Vs Rananath, 2015 4 MPLJ 270 . 10. I have heard learned counsel for the parties and perused the record. 11. The plaintiffs are real brothers and doing the business in the name of M/s Haji Mulla Hibtullahbhai Khanbhai & Sons. The Department of Industries, Government of Madhya Pradesh vide certificate dated 04.11.1955 had allotted the piece of land measuring 110x80 sq. ft. a/C no. 988 bearing survey no. 424/1 for construction of petroleum godown. Plaintiffs submitted an application before the then Gram Panchayat, Shyamgarh for building permission on 22.10.1994 vide Exhibit P-10(c) alongwith a map Exhibit P-11. Gram Panchayat, Shyamgarh granted building permission on 17.11.1994 vide Exhibit P-13. In the year 1965, the Collector and District Magistrate have approved the map and Sarpanch of Gram Panchayat, Shyamgarh granted the building permission and since then, outlet is there. The plaintiff submitted an application dated 17.11.1994 for construction of new sales room after dismantling the godown and after granting permission by the Nagar Palika, the office building was constructed. A complaint was made to the Collector and vide order dated 15.09.1995. the construction was stayed, but later on vide order dated 10.03.1997 Exhibit P-14(c), the Collector has refused to interfere with the permission dated 17.11.1994 and revoked the order of suspension. The said order has attained finality. The aforesaid order was passed after hearing the complainant and the Nagar Parishad Shayamgarh. The copy of both the notices issued by the Tehsildar are not on record. Even, the defendants have not filed copy of notice alongwith the written statement alleging encroachment by the plaintiff. The said order has attained finality. The aforesaid order was passed after hearing the complainant and the Nagar Parishad Shayamgarh. The copy of both the notices issued by the Tehsildar are not on record. Even, the defendants have not filed copy of notice alongwith the written statement alleging encroachment by the plaintiff. A simple averment has been made in the written statement that the plaintiff has constructed the office on government land bearing survey no. 424/1. The plaintiffs were allotted the land bearing the survey no. 424/1 which is a government land. Therefore, it was for the defendants to establish that the plaintiffs have made construction more than the area measuring 110x80 sq.ft allotted to them. The defendants examined Patwari as DW-1 who has admitted in his cross-examination that he has not issued any notice to the plaintiffs and his predecessor also did not issue notice to the plaintiff in respect of the construction work. He has also admitted that adjacent to the petrol pump, there is a building and shopping complex of the Municipal Council in the same survey no. 424/1. He has also admitted that no record is available in respect of the transfer of land to the Shyamgarh Panchayat. He has only produced a copy of Khasra Panchshala in which survey no. 424/1 is recorded as government land. Therefore, the trial Court has not committed any error. 12. The defendants have admitted the grant of building permission and the possession of plaintiffs over the land admeasuring 110x80 sq. ft bearing survey no. 424/1. No evidence has been led in respect of encroachment by the plaintiffs. Therefore, both the Courts below have not committed any error while granting the decree of permanent injunction. Hence, the question no.1 is answered in favour of the plaintiffs. 13. So far as question no. 2 and 3 are concerned, defendant no.1 filed an application under Order 26 Rule 9 CPC before the trial Court for appointment of Commission to inquire into encroachment on survey no. 424/1. The plaintiffs opposed the said application by filing reply on the ground that Collector is appellate authority and held that plaintiffs have raised the construction over the land allotted to them. Vide order dated 16.10.2000, the learned trial Court has rejected the said application. 424/1. The plaintiffs opposed the said application by filing reply on the ground that Collector is appellate authority and held that plaintiffs have raised the construction over the land allotted to them. Vide order dated 16.10.2000, the learned trial Court has rejected the said application. It is correct that where the issue of encroachment is involved, the Court may appoint commission under the provision of Order 26 Rule 9 of the CPC. But before exercising the said power, it is the duty of parties to establish their case by way of their evidence. The plaintiffs approached the civil Court for the relief of permanent injunction that the defendants are trying to interfere into their peaceful possession. The defendant came with the plea that the plaintiffs have made encroachment. However, in the written statements they have not even filed the copy of the notice . No area of encroachment is mentioned in the written statement. 14. The plaintiff filed the suit alleging that the defendant No.1 has encroached the temple. The defendant No.1 filed the writtenstatement denying the allegation and submitted that he is owner of the land. The earlier application under Order XXVI Rule 9 of the CPC was filed before adjudication of application under Order XXXIX Rule 1 & 2 of the CPC. The learned Trial Court at that stage has rightly dismissed the application as the provisions of Order XXVI Rule 9 of the CPC cannot be invoked for collection of evidence. Thereafter both the parties have given the evidence and after the evidence the Court has appointed the commission to give a spot inspection report. The provisions of Order XXVI Rule 9 of the CPC are very clear and for the ready reference the same is reproduced below :- 9. Commissions to make local investigations.-- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court : Provided that, where the State Government has made rules as to the peprsons to whom such commission shall be issued, the Court shall be bound by such rules. It is clear from the above provision that if during pendency of the trial and before the judgment, the Trial Court finds that any issue required clarification or elucidation, the Court may appoint Commissioner to submit the report for which no application is required. The scope of Order 26 Rule 9 of the CPC is very limited. The Trial Court in any suit in which a local investigation is required or proper for purpose of elucidating any matter of dispute, may appoint a Commissioner. It is settled law that the parties are under obligation to prove their case by way of evidence, therefore, it is the duty of plaintiff/defendant to first give evidence in support of their case. After the evidence of parties, if Court deem it proper that any issue is required to be elucidate or clarified then the Court may appoint a Commissioner. The report of Commissioner is merely a piece of evidence and not binding on the Trial Court. It can be used for the purpose of appreciating the evidence came on record. The Hon'ble Supreme Court in the matter of Haryana WAQF Board v/s Shanti Sarup and Ors., 2008 8 SCC 671 , has held that if the controversy is regarding demarcation of the land between the parties, the Court should direct the investigation by appointing a legal Commission. Para 4 and 5 of the aforesaid judgment is reproduced as under :- 4. Admittedly, in this case, an application was filed under Order 26 Rule 9 of the code of Civil Procedure which was rejected by the trial Court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the Court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9, CPC. 5. The appellate Court found that the trial Court did not take into consideration the pleadings of the parties when there was no specific denial on the part of the respondents regarding the allegations of unauthorized possession in respect of the suit land by them as per Para 3 of the plaint. But the only controversy between the parties was regarding demarcation of the suit land because the land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial Court was wrongly rejected. But the only controversy between the parties was regarding demarcation of the suit land because the land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial Court was wrongly rejected. This Court in case of Durga Prasad v/s Parveen Foujdar, 1975 MPLJ 801 has also considered the scope of Order XXVI Rule 9 and held that the Court should order the appointment of Commission when there is a dispute of encroachment. Para 25 of the said judgment is reproduced as under : 25. Point No.2: 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 a Commissioner under Order 26, Rule 9 of the Code of Civil Procedure. On 15.09.1966 the plaintiff, accordingly, applied for the issue of a commission to the Director of Land Records for a theodolite survey of the plaintiff's leasehold area. Again this Court has taken similar view in case of Jaswant S/o Kashi Ram Yadav v/s Deen Dayal, 2011 2 MPLJ 576 has held that duties of the Court to issue a commission by appointing an employee of revenue department to get the land in dispute demarcated and for which no application is required. Para 10 of the said judgment is reproduced as under :- 10. The moot question to be decided in this appeal is whether the property in question is of plaintiff or defendant. Both the parties are claiming ownership right on it. According to the plaintiff he purchased the land vide registered sale deed Ext-P-2 from Deen Dayal and the suit property is a piece of that land but according to the defendant it is part of the property which he purchased from Sudhir Shrivastava vide registered sale deed Ext-D-3. According to me, when there is dispute about demarcation of the property in question and its identity and both the parties are claiming it to be of their own on the basis of their document of title it was incumbent upon the Court itself to issue a commission by appointing an employee of revenue department not below the rank of Revenue Inspector to get it demarcated so that it can be identified. In the instant case my attention has been drawn by learned counsel for defendants to the application filed under Order XXVI, Rule 9, Civil Procedure Code but the same has been rejected at the time of the consideration of temporary injunction application. To me learned trial Court erred in substantial error of law in rejecting the said application. The learned First Appellate Court has also committed the same error by not allowing the said application. Indeed, it was the duty of the Court itself to issue commission by appointing an employee of Revenue Department not below the rank of Revenue Inspector to get the land in dispute demarcated and for its identification no application is required for that purpose. In view of the law laid down in the above judgments, it is settled law that the commission can be appointed only in case of demarcation and encroachment. The issue of possession is to be decided only on the basis of evidence. 15. The defendant no.1 filed an application under Order 26 Rule 9 CPC which was rejected by the trial Court vide order dated 30.10.2000 and none of the defendants have challenged the said order by way of revision or writ petition. The defendant no.2 is State Government through Collector and all the revenue authorities are sub-ordinate to the Collector and they could have conducted the demarcation suo-moto and submitted report to the Court. The Tehsildar appeared as DW1 who did not produce any evidence in respect of encroachment. Therefore, the private party can file an application seeking appointment of commission for spot inspection, but the revenue authorities who is defendant before the Court has failed to produce any evidence in respect of encroachment over the Government land. Even the present appellant as municipal authorities also having supporting staff like revenue authorities and they could have submitted their own report in respect of encroachment with the permission of Court. Both the Government authorities have failed to produce any material before the Court in respect of encroachment and expected from the Court to appoint the Government authorities as commission for spot inspection but in the present case where the Government authority itself is a defendant then, there was no question to seek appointment of commission. Both the Government authorities have failed to produce any material before the Court in respect of encroachment and expected from the Court to appoint the Government authorities as commission for spot inspection but in the present case where the Government authority itself is a defendant then, there was no question to seek appointment of commission. After producing any material before the Court in respect of alleged encroachment, if any verification or elucidation was required, the Court have appointed any independent authority to conduct the spot inspection, since no such steps have been taken by the defendants, the Court below has rightly declined for appointment of commission in this case. 16. Hence, question no.2 and 3 both are answered against the defendants. 17. Consequently, appeal fails and is hereby dismissed.