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2021 DIGILAW 152 (MP)

Kambod Singh v. Secretary Railway, Govt. of India

2021-02-15

VISHAL MISHRA

body2021
JUDGMENT : Vishal Mishra, J. 1. With the consent of parties, the matter is heard finally. 2. Present petition has been filed under Article 227 of the Constitution of India challenging the order dated 20.3.2019 passed in Civil Suit No. 71-A of 2018 by V Civil Judge, Class II, Vidisha whereby, the application under Order 26 Rule 9 of CPC for appointment of Commissioner even prior to deciding the application under Order 39 Rule 1 and 2 of CPC, has been allowed. 3. The plaintiff/petitioner claiming himself to be owner and in possession of the house ad-measuring 1779 sqft. (165.334) sq.mt. situated in Old Ward No. 30 Near Railway Station Vidisha has instituted a suit for permanent injunction and prayed that the defendants be restrained from making any interference in title and possession of the house and further be restrained from dismantling the house alleging it to be encroachment over the land of the railway. Along with plaint an application under Order 39 Rule 1 and 2 of CPC has been filed seeking injunction against the defendants. The respondents filed written statement and reply to the application under Order 39 Rule 1 and 2 of CPC and the case is at the stage of deciding the application under Order 39 Rule 1 and 2 of CPC. 4. The defendants have filed an application under Order 26 rule 9 of CPC for demarcation of the disputed property contending that in that the upon making survey by agency of Union Govt. encroachment of plaintiff has been found over 124.7875 sqmt and from the middle point of the down main line upto 250 ft. the land of railway has been earmarked. It is submitted that no document mentioned in the application has been filed on record before the learned trial court. The learned trial court after hearing arguments of both the parties rejected the application holding that the application has been filed for collection of evidence which is not permissible. Even the case is at the stage of consideration of the application under Order 39 Rule 1 and 2 of CPC therefore, no such application should have been entertained. He has relied upon the judgment passed by this court in the case of Ashok Kumar Patel and Others Vs. Even the case is at the stage of consideration of the application under Order 39 Rule 1 and 2 of CPC therefore, no such application should have been entertained. He has relied upon the judgment passed by this court in the case of Ashok Kumar Patel and Others Vs. Ram Niranjan and Others, reported in 2007 (III) MPWN 123 , wherein, it is clearly held that at the stage of consideration of application under Order 39 Rule 1 and 2 of CPC for injunction, the application under Order 26 Rule 9 of CPC for commission generally should not have been entertained. He has further relied upon the judgment passed in the case of Rahees Khan and Others Vs. Pradeep and Others reported in 2016 RN 239 and Shivkumar Sharma and Others Vs. Sukhdev Lal and Others reported in 2016 RN 347 and has argued that as per section 45 of the Evidence Act, the expert opinion cannot be collected at an early stage as the civil suit is still at the stage of consideration of application under Order 39 Rule 1 and 2 of CPC, the same will amount to collection of evidence which is not permissible by filing an application under order 26 Rule 9 of CPC. It is submitted that the learned trial court has not considered the aforesaid aspect and has allowed the application against which, present petition has been filed. It is argued that as per the settled legal proposition of law with respect to consideration of the application under Order 26 Rule 9 of CPC, it is settled position that the same cannot be considered for collection of evidence. In such circumstances, the trial court has committed an error in allowing the application. 5. Per contra, counsel appearing for the respondents has supported the impugned order and has submitted that the trial court has rightly considered the application and has allowed the same as survey was got conducted by the Union of India wherein, it was found that the plaintiff had encroached upon the 124.7875 Sqft property of the railways and the property from down main line to 250 Sqft belongs to the railway. The aforesaid aspect was duly surveyed and the report was submitted by the railway authorities. In such circumstances, the plaintiff has admittedly encroached upon the property of the railways. The aforesaid aspect was duly surveyed and the report was submitted by the railway authorities. In such circumstances, the plaintiff has admittedly encroached upon the property of the railways. It is pointed out that the aforesaid aspect can only be verified by issuance of commission as there cannot be any other document in support of the agreement. In such circumstances, no illegality has been committed by the trial court. He has relied upon the judgment of this court in the case of Jagdish Prasad Vs. State of M.P., reported in 2009 Volume 2 MPLJ 429, DB decision of this court, wherein scope of Order 26 Rule 9 of CPC has been considered. He has further objected that the petition directly before this court is not maintainable. The petitioner is having a remedy to approach the appellate jurisdiction but instead of approaching the appellate court, the petition has directly been filed before this court under Article 227 of the Constitution of India, which is not maintainable. In such circumstances, when the petitioner is having alternative and efficacious remedy to challenge the impugned order dated 20.3.2019 before the District Judge Vidisha, the present petition is not maintainable. 6. Heard learned counsel for the parties and perused the record. 7. From perusal of record, it is seen that the civil suit was filed for permanent injunction and for restraining the defendants from making any interference in title and possession of the house and further restraining from dismantling the house alleging it to be encroachment over the land of railway. Written statement was filed by the respondents/defendants denying all the plaint averments and also reply to the application under Order 39 Rule 1 and 2 of CPC has been filed. The application under Order 26 Rule 9 of CPC has been filed wherein, prayer is made for appointment of Commissioner to ascertain the actual position of the property and dispute as it is categorically mentioned that the plaintiff has encroached upon the property of the railways which has been ascertained in a survey having got conducted by the Union of India. The survey report submitted by the authorities have never been put to challenge at any point of time, therefore, it amounts to expert opinion under Section 45 of the Evidence Act. To ascertain the aforesaid aspect, an application under Order 26 Rule 9 of CPC was filed for appointment of commissioner. The survey report submitted by the authorities have never been put to challenge at any point of time, therefore, it amounts to expert opinion under Section 45 of the Evidence Act. To ascertain the aforesaid aspect, an application under Order 26 Rule 9 of CPC was filed for appointment of commissioner. The application was allowed by the trial court directing for commissioning of the land in question by issuance of commission for inspection of the land in question. Order 26 rule 9 of CPC is required to be seen which reads asunder: "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". 8. From perusal of the aforesaid provision, it is apparently clear that the powers under Order 26 Rule 9 of CPC are discretionary in nature and can also be exercised by the trial court even by suo motu proceedings for the purpose of elucidating any matter and dispute or for ascertaining the market value of the property. If the court deems it appropriate that local investigation should be carried out, can direct appointment of commissioner by local authorities. The report of commission and the evidence taken by him shall be evidence in the suit and shall form part of the record. The Commission may be examined in person before the court. It is further pointed out that as the survey of the property has already been conducted by the Central Govt., and the report has been submitted pointing out the fact that the petitioner has encroached upon the property 124.7875 Sqmt belong to the railways and from the middle line of down main line up to 250 sqft of the land belongs to the railways. The aforesaid report establishes the fact that the petitioner has encroached upon the property in question. 9. 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. The aforesaid report establishes the fact that the petitioner has encroached upon the property in question. 9. 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. 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." 10. Further, 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. 11. 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. 11. 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: "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. 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 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: "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.". 18. Similar view was taken by the High Court that in the case of encroachment, appointing of commission is proper. In Durga Prasad 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.". 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: "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." 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 and 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. The issue of possession is to be decided only on the basis of evidence." In such circumstances, as it is discretion of the court to consider the application as per the facts of the case and if the court finds it appropriate to issue commission, the same can be done. As far as interference in the case under Article 227 of the Constitution of India is concerned, the law is well settled by Hon'ble Supreme Court in the case of Shalini Shyam Shetty Vs. Rajendra Shankar Patil (2010) 8 SCC 329 wherein it had formulated following principles for exercise of High Court's jurisdiction under Article 227 of the Constitution in India: (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. (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. 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 12. There is very limited scope for entertaining the petition under Article 227 of the Constitution of India where the courts are exercising supervisory jurisdiction of this court. Even otherwise, the petitioner has directly approached this court by filing this petition despite of the fact that he was having remedy to approach learned District Judge for redressal of his grievance. 13. In such circumstances, no illegality has been committed by learned trial court and the order impugned does not call for any interference in the proceedings under Article 226/227 of the Constitution of India. 14. The petition being sans merit is hereby dismissed with no order as to the cost. 15. CC as per rules.