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2023 DIGILAW 811 (MP)

Lakhanlal Sahu (Modi) v. Indrapal Patel

2023-10-04

SANJAY DWIVEDI

body2023
ORDER 1. By the instant petition filed under Article 227 of the Constitution of India, the petitioner is asking for following relief: "7.1 That, the Honble Court may be pleased to call for the record of the court below for its kind perusal and reference. 7.2 That, the Honble Court may be pleased to issue appropriate writ, order or direction quashing and setting aside the orders as contained in annexure P/7 passed by the court below in its entirety resultantly the application filed vide annexure P/5 by defendants no.1 and 2 for appointment of Commissioner be dismissed with costs throughout. 7.3 That, any other writ, order or direction which is deemed fit and proper under the circumstances of the case be issued together with awarding the cost of the petition." 2. The facts of the case in a nutshell are as follows: (2.1) The plaintiff/petitioner has filed a suit i.e. Civil Suiit No.42-A/2018 for declaration of title and injunction claiming himself to be the owner of the land in suit and possessed the same. The suit land was described in the map attached with the plaint seeking injunction therein that the defendants/respondent Nos.1 and 2 be restrained from interfering with the rights, title and possession of the plaintiff/petitioner. (2.2) The written statement was filed by the defendants/respondent Nos.1 and 2 denying the averments made in the plaint and denying the title of the plaintiff/petitioner over the suit land. As per the defendants, the owner of the suit land was Munna s/o Kashiram Kumhar, but not the plaintiff. (2.3) There was some dispute between the parties before the revenue authorities in a proceeding initiated under Sections 107 and 129 of the M.P. Land Revenue Code, 1959 (hereinafter referred to as the Code, 1959) in which according to the plaintiff, the report was obtained by the defendants using their high political connection without giving any notice to the plaintiff and on the basis of said report, the defendants are trying to grab the property which is a valuable property situated at the adjoining land of the plaintiff. (2.4) In the pending civil suit, an application under Order 26 Rule 9 of the Code of Civil Procedure was moved by the defendants/respondent Nos.1 and 2, but that application was dismissed by the trial Court vide order dated 23.10.2018. (2.4) In the pending civil suit, an application under Order 26 Rule 9 of the Code of Civil Procedure was moved by the defendants/respondent Nos.1 and 2, but that application was dismissed by the trial Court vide order dated 23.10.2018. (2.5) After rejecting the application, the defendants/respondent Nos.1 and 2 again moved the application under the same provision i.e. Order 26 Rule 9 of CPC for issuing commission so as to investigate the land or to get proper demarcation. The said application was also opposed by the plaintiff/petitioner, who also filed reply to the application, but the trial Court vide order dated 20.11.2018 (Annexure-P/7) allowed the application directing appointment of Commissioner so as to ascertain the boundaries of the land in question ignoring the fact that the proceeding between the parties under Section 129 of the Code, 1959 is already pending before the Board of Revenue Gwalior. Since the application was allowed by the trial, therefore, the petitioner has filed this petition. 3. The learned senior counsel appearing for the petitioner is challenging the impugned order mainly on the ground that once application under Order 26 Rule 9 of CPC has been rejected then in the same circumstance, second application cannot be entertained and allowed by the Court. Learned senior counsel has contended that the application has been filed just to collect the evidence in support of the stand of the defendants/respondent Nos.1 & 2 and, therefore, said application could not have been allowed because as per the settled principle of law, the Commissioner cannot be appointed to collect the evidence to make the case of a particular party strengthen. 4. Learned counsel appearing for respondent Nos.1 and 2 has submitted that looking to the dispute involved in the case, it can be easily gathered that it was a dispute with regard to boundaries and identification of the land, therefore, nothing wrong has been committed by the trial Court appointing the Commissioner so as to make the situation more specific and decide the dispute more conveniently. 5. I have heard the rival submissions made by learned counsel for the parties and perused the material available on record. 6. As per the pleadings and submissions made before this Court, written statement has already been filed by the defendants/respondent Nos.1 and 2, issues were also framed, but the evidence of the parties is yet to be started. 5. I have heard the rival submissions made by learned counsel for the parties and perused the material available on record. 6. As per the pleadings and submissions made before this Court, written statement has already been filed by the defendants/respondent Nos.1 and 2, issues were also framed, but the evidence of the parties is yet to be started. Undisputedly, the application submitted by the defendants/respondent Nos.1 and 2 on earlier occasion under the provisions of Order 26 Rule 9 of CPC has been rejected. Although, the Court has observed that in this case the dispute of identification of the property and also of encroachment is involved and the Court finds it proper to appoint a particular officer so as to submit his report because only on the basis of oral submission, decree cannot be passed. For proper identification of the property in question, the Commissioner ought to have been appointed, the trial Court, therefore, found fit to allow the application and allowed the same. However, I am not convinced with the observation made by the trial Court because the trial Court has not properly appreciated the provision of Order 26 Rule 9 of CPC. Undoubtedly, the Commissioner can be appointed by the Court for ascertaining the identification of the property and if it finds that a dispute with regard to encroachment is involved, the Commissioner can be appointed. 7. Here in this case, the plaintiff has come up with the stand that the property in question has been properly described in the plaint with boundaries which can be easily identified and it is also stated that he is in possession of the land. Merely because the fact has been denied in written statement making the said factual aspect disputed, without framing issue with regard to encroachment or identification of the property, the trial Court directed the appointment of Commissioner at the very inception when parties have to produce the material in support of their claim. The stage in which the Commissioner has been appointed was not proper. 8. As per the respective provision i.e. Order 26 Rule 9 of CPC, the Commissioner can be appointed by the Court for the purpose of elucidating any dispute by conducting a local investigation through commission. The stage in which the Commissioner has been appointed was not proper. 8. As per the respective provision i.e. Order 26 Rule 9 of CPC, the Commissioner can be appointed by the Court for the purpose of elucidating any dispute by conducting a local investigation through commission. The Court suo motu can do such thing, but that situation comes only after considering the material produced before the Court and Court finds itself unable to decide the issue and then only it can take help by conducting a local investigation through commission. For the purpose of convenience, the provision of Order 26 Rule 9 of CPC is being reproduced hereinbelow: "Order XXVI, Rule 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." 9. In the present case, neither the Court has reproduced the issue framed by the Court so as to decide the dispute pending between the parties nor shown the situation when the Court itself is not able to decide the dispute because evidence has not been produced by the parties. It otherwise indicates that before producing the evidence by the parties, it is the Court which has tried to resolve the dispute on the basis of evidence collected by the Commissioner, but that is not the object of the said provision. The Commissioner is appointed for the purpose of convenience of the court or to make the things better, but it cannot be used otherwise. The report of the Commissioner is not the sole foundation for deciding the dispute between the parties. The Commissioner is appointed for the purpose of convenience of the court or to make the things better, but it cannot be used otherwise. The report of the Commissioner is not the sole foundation for deciding the dispute between the parties. Thus, this situation comes before the Court only after recording the evidence of the parties and if on the basis of material produced, the Court comes to the conclusion that it is difficult for it to resolve the dispute and the Court is not in a position to identify the property or finds that it is a dispute of encroachment then only the Court can take help of local investigation, but otherwise not. 10. The application once rejected by the Court, under the same circumstance, it cannot be entertained again. Therefore, in my opinion, the trial Court has exceeded its jurisdiction and committed a patent illegality directing appointment of Commissioner without there being any material before the Court produced by the parties by way of their evidence. The impugned order dated 20.11.2018 contained in Annexure-P/7, is therefore, not sustainable in the eyes of law. It is accordingly set aside. 11. However, the liberty is still open to the trial Court if finally situation arises under which the Court is not in a position to decide the dispute without the help of Commissioner, the Court can take appropriate steps applying the respective provision i.e. Order 26 Rule 9 of CPC. 12. With the aforesaid observations, the petition stands allowed.