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2021 DIGILAW 128 (MP)

Ajay Singh Tomar v. Rambaboo

2021-02-09

VISHAL MISHRA

body2021
JUDGMENT : Vishal Mishra, J. Heard through Video Conferencing. 1. The present petition is being filed by the petitioners challenging the order dated 15.9.2012 passed in Civil Suit No. 23A/2012 by First Civil Judge Class II, Morena whereby the application filed under Order 26 Rule 9 of CPC for spot inspection and demarcation of Survey No. 368 and Survey No. 379 situated at Village Shikarpur, Tahsil and District Morena has been rejected. 2. It is submitted that the petitioner plaintiffs have filed a civil suit before the Trial Court for declaration and permanent injunction with respect to the Survey No. 368 Min Part A, B, C and D. Application for temporary injunction was also filed along with the Civil Suit. The defendants after being served has filed response to the reply of the temporary injunction and denied the entire allegations. Thereafter the plaintiff/petitioner filed an application under Order 26 Rule 9 read with section 151 of CPC to the effect that there appears to be some boundary dispute as is reflected from the map. The defendants have alleged encroachment and the aforesaid encroachment cannot be clarified without any demarcation of the property. The plaintiff has specifically pleaded encroachment and they want to raise construction over the disputed land which is of their ownership. The learned Trial Court has rejected the application on the ground that it is a duty of the plaintiff to prove his case and by the aforesaid application the collection of evidence is not permissible. It was further observed that from the pleadings available on record there appears to be no dispute with respect to the map of the boundaries. In such circumstances, the application was rejected. The petitioner has relied upon the judgments passed by the Court in the case of Arun Kumar Vs. Namdeo, 1987-1 MPWN 71, Kamlesh Sharma (Smt.) Vs. Komal Chand Kesharwani, 1998 (II) MPWN 40 and Tara Singh Vs. Shri Parshvanath Digember Jain Mandir Pisanhari Madhiya Trust, 2002 (II) MPWN 17 and has argued that in all the aforesaid cases it is settled that once there is a dispute with respect to the boundaries of the map as is mentioned and reflected in the plaint the Court should have directed for issuance of commission and should have allowed the application under Order 26 Rule 9 of CPC. In such circumstances, he has prayed for setting aside the impugned order and allowing of application. 3. Despite service nobody has appeared for the respondents in the matter. 4. Heard the learned counsel for the petitioner and perused the record. 5. On perusal of the record, it is seen that petition is filed in the year 2012 and the interim relief was granted by this Court on 25.4.2012 and the proceedings of the civil suit were stayed and since then the petition is pending consideration on this small issue. 6. It is seen from the record that in a civil suit for declaration and permanent injunction an application under Order 26 Rule 9 CPC read with section 151 of CPC was filed by the plaintiff seeking spot inspection and demarcation of the property in dispute alleging therein that from the map it is clear that there is some boundary dispute. The plaintiff has also alleged encroachment over the property which could have only be clarified by demarcation. Order 26 Rule 9 of CPC is required to be seen which reads as under: "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 persons to whom such commission shall be issued, the Court shall be bound by such rules." 7. The Single Bench of this Court in the case of Suryabhan Singh Vs. State of M.P. and others, 2006 (5) M.P.H.T. 346 , held as under: "4. This Court has also consistently taken the view that appointment of Commissioner is to the discretion of the Trial Court. Relying on Laxman Vs. Ramsingh, M.P.W. N. 1982 Note 255 whereby this Court held that the relief claimed was discretionary and if the Court below had exercised jurisdiction then by exercising that discretion it could not be said that the Court had committed that error of jurisdiction by rejecting that application. Relying on Laxman Vs. Ramsingh, M.P.W. N. 1982 Note 255 whereby this Court held that the relief claimed was discretionary and if the Court below had exercised jurisdiction then by exercising that discretion it could not be said that the Court had committed that error of jurisdiction by rejecting that application. Considering Rule 9 of Order 26, CPC, the language itself is very equivocal in its terms as it states that any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and report thereon to the Court. Thus, since the nature of the relief is purely discretionary in nature and then when the Court below was satisfied that the appointment of the Commissioner was not necessary under the circumstances and the application was an afterthought to collect evidence then such an order cannot be interfered with." 8. The Single Bench of this Court in the case of Ashok Parwat Vs. Sudarshan and others, 2016 (4) M.P.L.J. 210 held as under: "15. The Hon'ble Supreme Court has also considered the scope of order 26 Rule 9 and held that the provision of Order 26 Rule 9 is to be invoked if the controversy is regarding demarcation of the land between the parties. 16. Similar view has been taken by the Hon'ble Supreme Court in the matter of Haryana WAQF Board Vs. Shanti Sarup and Ors., reported in (2008) 8 SCC 671 , wherein, it has been 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. 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 unauthorised 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 17. This Court in case of Durga Prasad Vs. Parveen Foujdar, reported in (1975) MPLJ 810 has also considered the scope of order 26 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: 5. 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 plaintiffs leasehold area." 18. Similar view was taken by the High Court that in the case of encroachment, appointing of commission is proper. In Durga Prasad Vs. Parveen Foujdar, reported in (1975) MPLJ 810 this Court has also considered the scope of order 26 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: 5. 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." 19. Again this Court has taken similar view in case of Jaswant S/o. Kashi Ram Yadav Vs. 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." 19. Again this Court has taken similar view in case of Jaswant S/o. Kashi Ram Yadav Vs. Deen Dayal, reported in (2011) 2 MPLJ 576 had 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: "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. 20. 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. 20. 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." Further the Court has considerably taken a view that the appointment of the Commissioner is a discretion of the Trial Court and the discretion has been exercised by the Court below. It cannot be said that the Court has committed error of jurisdiction by rejecting an application under Order 26 Rule 9 of CPC. Considering Rule 9 of Order 26 of CPC the language itself is equivocal terms and it states that 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 the Court may issue a commission to such person as it thinks fit directing him to make such investigation and report thereon to the Court. Since the nature of relief is purely discretionary the Court below was justified in rejecting the application under Order 26 Rule 9 of CPC an application appears to be an after though to collect the evidence. 9. As per the settled preposition of law with respect to Order 26 Rule 9 of CPC that no such application should be allowed permitting for collection of evidence. It is a duty of the plaintiff to prove his own case by leading cogent evidence. The Trial Court has categorically held that there appears to be no dispute with respect to the boundaries or the map, thus the application was rejected. Under the supervisory jurisdiction under Article 227 of the Constitution of India the scope for interference is limited as has been held by the Hon'ble Apex Court in the case of Shalini Shyam Shetty Vs. Rajendra Shankar Patil (2010) 8 SCC 329 , in which Hon'ble Apex Court held as under: "(a) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (b) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (c). In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised." 10. Taking into consideration the overall facts and circumstances, coupled with the law laid down by the Hon'ble Supreme Court in the aforesaid cases, this Court finds that the order impugned does not suffer from any illegality, therefore, no interference is called for in the impugned order. 11. Accordingly, the petition sans merit and is accordingly dismissed. 12. Interim order granted on 25.9.2012 is also stands vacated. 13. The Trial Court is directed to proceed in the matter. The order passed today is directed to be communicated to the concerning Trial Court immediately. E-copy/Certified copy as per rules/directions.