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2025 DIGILAW 154 (CHH)

Laxmi Lakhani, W/o Shri Dilip Lakhani v. Rajesh Tah, S/o Shri Madanlal Tah

2025-03-06

RAJANI DUBEY, SACHIN SINGH RAJPUT

body2025
Judgment : (Rajani Dubey, J.) 1. The plaintiff/appellant herein has filed this appeal being aggrieved by judgment and decree dated 12.09.2023 (Annexure A-1) passed by 1 st Additional District Judge, Bilaspur (C.G.), in Civil Suit No. 61-A/2018, whereby the suit filed by the plaintiff/appellant herein for vacant possession of suit property and grant of Rs.8,000/- towards depriving her from the use of suit property with 18% interest from the date of receiving possession, was dismissed. The parties to this appeal shall be referred herein as per their description before the learned trial Court. 2. The case of the plaintiff, in brief, is that the suit property was ancestral property owned and possessed by Ram Kumar Tah. On 17.01.2018, the plaintiff had purchased the suit property from Ram Kumar Tah through two separate registered sale deeds and after the subsequent purchase, her name was recorded in the Nazul record. The tenant is residing in the ground floor of the suit property and the defendants have been residing in the first floor with the permission of the seller Ram Kumar Tah. Before purchasing the suit property, her husband had talked to the tenant and the defendants. The tenant had asked to continue the tenancy even after the purchase of the suit property and the defendants had asked to hand over the possession of the first floor to the plaintiff. It was further pleaded in the plaint that after the purchase, when the defendants were asked to hand over the possession of the first floor, the defendants did not hand over the possession to the plaintiff. Thereafter, the plaintiff, through her Advocate, sent a legal notice to the defendants through registered post on 03.07.2018 to hand over the possession of the first floor of the suit property. The defendants, by sending a reply to the notice, refused to hand over the possession saying that the boundary of the suit property is wrong and that the suit property belongs to them. The suit property was inherited to seller Ram Kumar Tah while he was a minor and since then he had ownership and was in possession of it. He had also got the patta of the suit property renewed from the Nazul department. The suit property was inherited to seller Ram Kumar Tah while he was a minor and since then he had ownership and was in possession of it. He had also got the patta of the suit property renewed from the Nazul department. The Nazul officer, after conducting a spot inspection himself and through an Inspector, determining the boundary mark of the suit property, has renewed the patta of it in favour of Ram Kumar Tah, which was never objected by the defendants, but after the plaintiff purchased the suit property, the defendants were claiming that it belongs to them. It was also pleaded in the plaint that the suit property is a commercial and residential complex situated in front of CIMS Hospital, for which the plaintiff would have received monthly rent of at least Rs. 8,000/-, but due to not handing over the vacant possession by the defendants, she is suffering loss of this rent amount. Therefore, the plaintiff had filed this suit to get the vacant possession of the first floor of the suit land house from the defendants and to get intermediate profit @ of Rs. 8,000/- per month from 03.07.2018 till the date of possession with 18% interest on it. 3. The defendants/respondents filed their written statement and denied the plaint averments only having left the admitted fact. It was stated in the written statement that Madanlal Tah did not have any son named Rakesh Tah, whereas the plaintiff has made him a party as defendant No. 2, thus there is a defect of mis-joinder of the parties in the case. The plaintiff has stated in her plaint that an old two- storey house was built in Nazul land Sheet No.26, plot No.4/1 situated at Gondpara, whereas in the maintenance khasra presented by the plaintiff for the year 2011-12, Nazul land sheet no. 26, plot no.4/1 area 1350 sq.ft. situated at Gondpara is mentioned as kitchen-garden (Badi). The portion of the house in which the defendants No. 1 and 3 are residing was received by their father Madanlal Tah in mutual oral partition, on which they are residing since birth and are not the licensee of Ramkumar Tah. In the maintenance khasra filed by the plaintiff, Nazul land sheet number 26, plot no. The portion of the house in which the defendants No. 1 and 3 are residing was received by their father Madanlal Tah in mutual oral partition, on which they are residing since birth and are not the licensee of Ramkumar Tah. In the maintenance khasra filed by the plaintiff, Nazul land sheet number 26, plot no. 4/1, minor Ramkumar Tah, S/o Dharam Prakash Tah guardian (Wali) Dharam Prakash Tah was mentioned, which makes it clear that the suit property was not inherited by Ramkumar Tah from his ancestors, as such, it is not his ancestral property. The suit property is the property received by Madanlal Tah, father of defendants 1 to 3, in mutual partition, which is built on 2115 sq.ft. in sheet No.26, plot no. 2/4 in the maintenance khasra of Godpara Bilaspur, which was owned and possessed by their ancestor Fakir Chand, S/o Chananram Punjabi, which was received by his heirs after his death and thereafter by their father Madanlal Tah in mutual oral partition, on which defendants 1 and 3 have been residing. The shop and house were neither the property owned or possessed by Ram Kumar Tah in the past nor in the present. It was further averred that in the sale deed dated 17.01.2018, although in particular of sold property it was mentioned as permanent nazul sheet No.26, plot No. 4/1, area 675 sq.ft. and 675 sq.ft. respectively, but in the four side boundry mentioned in sale deed it has been written that shop and house built in sheet No.26, plot no. 2/4. The plaintiff had not received valid title of suit property from the sale deed dated 17.01.2018 executed by Ram Kumar Tah in favour of plaintiff as the seller of the suit property was not having any valid title of it. Since the shop and house are in their ownership and possession, which they have not sold and on the basis of execution of sale deed of other land, the question of vacating the shop and house by them or granting time for the same does not arise. Further, the suit property is not in the ownership and possession of the plaintiff, as such, question of receiving Rs. 8000/- as monthly rent does not arise. The plaintiff has started construction on sheet no.26, plot no. 4/1 area 1350 sq. ft. Further, the suit property is not in the ownership and possession of the plaintiff, as such, question of receiving Rs. 8000/- as monthly rent does not arise. The plaintiff has started construction on sheet no.26, plot no. 4/1 area 1350 sq. ft. and at present the said construction has reached upto two storey, from which it is clear that the plaintiff is asserting her title and ownership through construction on plot no.4/1 and is also asserting her title and demanding possession on the already constructed house in plot no. 2/4 through the present suit. No cause of action has arisen for the plaintiff on 24.07.2018 or any other date, the plaintiff is not entitled to get any relief, hence the suit of the plaintiff may be dismissed. 4. The defendant Nos. 1 and 3 have also filed a counter claim to the effect that the suit property bearing sheet No.26, plot no. 2/4, area 2115 sq.ft. situated in Godpara, Bilaspur was originally owned and possessed by their ancestor Fakirchand, S/o Chanan Ram Punjabi, which was after the death of Fakirchand, was inherited to his legal heirs and thereafter by Madanlal Tah, father of defendant Nos. 1 and 3 in mutual oral partition, on which they have been residing. It was also pleaded in the counter claim that Ram Kumar Tah, seller of suit property to plaintiff, at the time of renewal of nazul land patta, got his name recorded in place of Fakirchand without any legal rights. It was also stated that Ram Kumar does not receive any title and ownership of the suit property on the basis of recording his name in revenue record in illegal manner, therefore, Ram Kumar Tah did not have the right to sell the suit property and he was not the sole proprietor or sole owner, as such, the plaintiff does not acquire any valid title from the sale deed executed by him. 5. It was also pleaded in the counter claim by the defendant Nos. 1 and 3 that according to four side boundary of plot no. 4/1, Lakhanlal Gupta’s house is situated in the east, house constructed in plot No.2/4 in west, in which defendant Nos. 1 and 3 reside, Punjabi Dharamshala is in the north side and Milan Mandir is in the sought direction, whereas according to four side boundary of plot no. 1 and 3 that according to four side boundary of plot no. 4/1, Lakhanlal Gupta’s house is situated in the east, house constructed in plot No.2/4 in west, in which defendant Nos. 1 and 3 reside, Punjabi Dharamshala is in the north side and Milan Mandir is in the sought direction, whereas according to four side boundary of plot no. 2/4, Milan Mandir is situated in the east, public road is int eh west, Sakhuja’s house is in the north and hotel of Solanki is in the south direction. A bare perusal of four side boundary of suit property mentioned in the two separate deeds executed on 17.01.2018 in favour of the plaintiff by Ram Kumar Tah goes to show that particular of suit property mentioned in sale deed written as sheet No. 26, plot no. 4/1, whereas its four side boundary is mentioned as plot no. 2/4 and on this basis the plaintiff is claiming her title, ownership and right over the house which is owned and occupied by the defendant Nos. 1 and 3. 6. It has been also pleaded in the counter claim that the defendant No. 3 had instituted a suit being Civil Suit No.354A/2014 [Yogesh Kumar Tah Vs. Ram Kumar Tah & Ors.], wherein on 24.11.2018 judgment and decree has been passed by the learned 3 rd Civil Judge Class-I. In the said suit, suit land was Sheet No.26, Plot No.2/4 area 2115. During the pendency of the said civil suit, Ram Kumar Tah executed sale deed on 17.01.2018 in fevour of plaintiff mentioning the four side boundary of that land and it has been falsely mentioned/written in the Sl. No.5 of the declaration of sell that no case is pending in any revenue or other Court as also there is no stay on the sold property. It was not mentioned in the sale deed that there is any tenant in the sold house, defendant Nos. 1 and 3 are residing as licensees, and the buyer has taken over the possession from the tenant and licensee. They have not sold the house of their title, ownership and possession, but the boundary mentioned in two separate sale deeds dated 17.01.2018 executed by Ramkumar Tah in favour of the plaintiff has had an adverse effect on their title and ownership on the land plot No. 2/4 owned by the defendants. They have not sold the house of their title, ownership and possession, but the boundary mentioned in two separate sale deeds dated 17.01.2018 executed by Ramkumar Tah in favour of the plaintiff has had an adverse effect on their title and ownership on the land plot No. 2/4 owned by the defendants. Hence, the counter claim has been filed by the defendant Nos.1 and 3 for deletion of the boundary mentioned in two separate sale deeds dated 17.01.2018 executed by Ramkumar Tah in favour of the plaintiff, of an area of 675 sq. ft. from Nazul land sheet No.26 plot No. 4/1 situated at Gondpara Bilaspur being the four side boundary of plot No. 2/4. 7. The plaintiff has also filed written statement to the counter claim filed by the defendant Nos. 1 and 3 denying the averments made in the counterclaim, and stated that the land of Nazul Sheet No. 26, Plot No. 2/4, area 2115 sq. ft. was not given in share to Madanlal Tah, father of the defendants Nos. 1 and 3, in the mutual oral partition. Ramkumar Tah, the seller of the suit property, did not register his name in place of Fakir Chand without any legal right at the time of renewal of the patta of the Nazul land. As per order dated 28.06.1993 of the District Collector, the said land was registered in the ownership and possession of the seller Ramkumar Tah during his teenager and thereafter, in R.P. No. 614/A-20(1)/2002-03, seller Ramkumar Tah filed an application before Nazul Officer for renewal, which was registered on 04.12.2002. In this case, the spot inspection report was called for from the Revenue Inspector, in which the defendant Yogesh Tah had appeared and raised objection on 07.03.2003, and the objected so raised was rejected on 25.03.2003 and after completion of inquiry, the case was sent to the Additional Collection on 28.06.2003. Defendant Rajesh Kumar Tah, on 13.07.2017, 06.09.2017 and 01.12.2017, had also filed his objection in the renewal before Nazul Officer, Bilaspur. After complete enquiry, the renewal order of patta was passed and was got registered from the Sub Registrar's office, which was not challenged before the appellate Court, as such, it attained finality. Defendant Rajesh Kumar Tah, on 13.07.2017, 06.09.2017 and 01.12.2017, had also filed his objection in the renewal before Nazul Officer, Bilaspur. After complete enquiry, the renewal order of patta was passed and was got registered from the Sub Registrar's office, which was not challenged before the appellate Court, as such, it attained finality. The defendants were given full opportunity of hearing and After enquiry, the land which was owned and possessed by seller Ramkumar Tah was purchased through a registered sale deed, on which the defendants or their ancestors had no interest. 8. It has been further averred in the counter claim that no house of Lakhanlal Gupta on the east side of plot No. 4/1, house on west in plot No. 2/4, Punjabi Dharamshala on the north and Milan temple on the south is there but to the north of the property owned and possessed by seller Ramkumar Tah, there is Sakhuja's house which has now been purchased by Shankar and Manoj Somnani, Solanki Hotel on the south, Milan temple on the east and public road on the west. The said four side boundary has been duly confirmed by spot inspection/demarcation made by the Nazul Officer, deciding the objections of the defendants and shown in the patta. The four side boundary of the sold property (suit property) is completely correct and the defendants have no interest in it. Civil Suit No. 354 A/14 is not related to Nazul land sheet No. 26, plot No. 4/1 and in the said suit there is no order regarding the four side boundary of plot No. 2/4 and 4/1 and Ramkumar Tah did not get the opportunity of being heard in the said suit. It was further averred that defendant Rajesh Kumar Tah along with others had filed a Civil Suit being No. 272-A/2015 against Yogesh Kumar Tah before the Court of 4th Civil Judge Class-1 Bilaspur for declaration of title and permanent injunction in respect of Nazul land sheet No. 26, plot No. 4/1 and 4/2. In the said suit, defendant Yogesh Kumar Tah had accepted the entire statement of Rajesh Kumar Tah in written statement. The said suit was dismissed on 16.03.2016 after framing issues, and the defendants had filed the counter claim concealing the said fact. The facts of the above two suits and the pleadings of the defendants are contradictory. In the said suit, defendant Yogesh Kumar Tah had accepted the entire statement of Rajesh Kumar Tah in written statement. The said suit was dismissed on 16.03.2016 after framing issues, and the defendants had filed the counter claim concealing the said fact. The facts of the above two suits and the pleadings of the defendants are contradictory. The judgment and decree have been passed between the same parties on 16.03.2016, as such the judgment dated 24.11.2018 passed thereafter has no effect. No case regarding the suit property was pending on the date of sale or there was no stay order from the Court was in force. The defendants have no connection with the suit property. Seller Ramkumar Tah had appointed the plaintiff's husband as his attorney holder and in the proceedings of renewal of patta filed before the Nazul Officer, the plaintiff's husband along with seller Ramkumar Tah and the defendants were also present. Due to the objection of the defendants, after providing an opportunity for delayed hearing, the order was passed and the documents were prepared and obtained from the Nazul office for sale of suit property. The defendants had filed a counter-claim concealing the legal proceedings. The four side boundaries of the suit property and the house were endorsed by legal documents, which have been confirmed by the competent Court, which remained unchallenged. The defendants have evaluated their counter-claim at Rs 31,35,333/- and have affixed a court fee of Rs 60/- only, which is not sufficient. The defendants have claimed the relief of mandatory injunction in the counter-claim, which is not specified in clause (d) of Clause 4, 6, 9 and 10 of Section 7 of the Court Fee Act, hence court fee of Rs. 1,53,865/- is payable on Rs. 31,35,333/-. Therefore, the plaintiff has prayed to dismiss the counter-claim of the defendants demanding Rs.20,000/- as compensatory damages from the defendants. 9. The learned trial Court on the basis of plaint averments, counter-claim, written statements in plaint and in counter- claim, vide judgment and decree dated 12.09.2023 dismissed the suit filed by the plaintiff and allowed the counter-claim filed by the defendant Nos. 1 and 3 holding them to be entitled to get the four side boundary of Plot No.2/4 deleted being the four side boundary of nazul land sheet No. 26, plot No. 4/1 from area 675 sq.ft. 1 and 3 holding them to be entitled to get the four side boundary of Plot No.2/4 deleted being the four side boundary of nazul land sheet No. 26, plot No. 4/1 from area 675 sq.ft. situated in Gondpara, Bilaspur mentioned in two separate sale deeds dated 17.01.2018. 10. Learned counsel for the appellant/plaintiff submits that the plaintiff has brought on record the documentary and oral evidence in support of her case, particularly with regard to title of the plaintiff over the suit property and therefore, further entitlement being the title holder of possession of the property from the defendants. By way of leading oral evidence and exhibiting documents after filing of affidavit in compliance of provisions of Order 18 Rule 4 CPC, the plaintiff has not only established her title but about the possession of the defendants as licensees (sic 'lessees') and during the course of cross-examination in categorical terms, the plaintiff has stated that although name of plaintiff has been recorded in land records but the facts are in the knowledge of husband of plaintiff and her husband will be in a position to state minute details and repeated the same in unequivocal terms in almost all paragraphs particularly in Para-18, 19, 25, 26, 28, 30, 32 and in other paragraphs equivocal terms. Learned counsel further submits that the plaintiff has also examined her husband in the matter, who has stated in detail not only about the title of plaintiff over the suit property but also in other paragraphs about the possession of defendants over the part of suit property as licensee (sic 'lessee'). Firther, in Para-18 of the cross- examination, plaintiff has explained about the title over the property purchased from Ram Kumar Tah and denied that he has manipulated the records and filed civil suit in the name of his wife by showing land of Plot No.2/4 to Plot No.4/1. The defendants have tried to protect their possession by creating a doubt in respect of the title of plaintiff over the property in possession of defendants or unnecessarily trying to create a storm in a tea cup. The defendants have tried to protect their possession by creating a doubt in respect of the title of plaintiff over the property in possession of defendants or unnecessarily trying to create a storm in a tea cup. The learned trial Court has given precedence to oral evidence over written instrument which is contrary to the established provision of law and in light of Section 91 of the Evidence Act which specifically states that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself. Learned counsel also submits that immediately after Para-29 of the impugned judgment, the learned trial Court has posed unto itself a question about the boundaries of Plots and thereafter in Para-30, 31, 32 stated about the four corners of boundaries in different manner and thereafter, in further paras held that the plaintiff failed to produce panchnama, report etc. of the Nazul Officer, and reached to the conclusion that the defendants are entitled for correction in sale deeds (Ex.P-1 & P-2) executed by said Ram Kumar Tah in favour of plaintiff, but the relief claimed by defendants and granted by the learned trial Court comes within the purview of Section 26 of the Specific Relief Act, 1963, and a bare glance of which reveals that for its applicability it has to be shown by the person claiming the relief, herein the defendants, that when through fraud or mutual mistake of parties, a contract or other instrument in writing does not express their real intention then either party or his representative in interest may institute a suit to have the instrument rectified, and in such, the suit of plaintiff filed within the meaning of Section 26, the defendants can only ask for rectification of instrument. Learned counsel also submits that in the instant case, it was not the plea of defendants that while executing sale deed by said Ram Kumar Tah, a mutual mistake or fraud has taken place and even if it is so, then such instrument can be rectified at the instance of either party to such instrument or their representative. In instant case, the defendants cannot claim themselves as the party to the instrument or representative in interest of said seller who can institute the suit or lay a counter claim as per provisions of Order 8 Rule 6A of the CPC. 11. Learned counsel further submits that there are other grounds also as for grant of decree of for rectification of instrument, the person executing the document ought to have been made party to the proceeding but in the present case, the seller namely Ram Kumar Tah was not made party and thus, so far as counter claim of the defendants is concerned, on this ground also, when there is non-joinder of necessary party, the decree granted in favour of respondent is liable to be set aside. Learned counsel also submits that finding on issue No.6 is incorrect or illegal for the reason that the plaintiff has proved her title through the sale deeds executed by said Ram Kumar Tah and other documents including of renewal etc. marked as Ex.P-1 to Ex.P-20 and these documents established that the defendants are in possession of area shown in the sale deeds executed by said Ram Kumar Tah i.e. Ex.P-1 & Ex.P-2 and when these documents established the right of plaintiff over the property in possession of defendants and oral evidence contrary to the contents of documents cannot be adduced or looked into when only conclusion which may be drawn that the possession of the defendants over the property is not legal and the claim of defendants in preponderance of probabilities that they are occupying the premises with the consent of the erstwhile owner as the licensee and after termination of their license by the notice Ex.P-7, the entitlement of the plaintiff was accrued to get the possession of the premises as the law is well settled that after termination of license, possession of licensee is a trespasser and possession of trespasser is liable to be removed and restored to the title holder. In case in hand, when there is no dispute with regard to title under the said sale deed of the area in possession of defendants then the plaintiff is entitled for decree as claimed. The appellant has stated that present is the case of simple suit based on title and the learned trial Court addressed unto itself a wrong questions, therefore, reached to wrong finding which amounts to illegality in the eyes of law and such illegality needs correction in exercise of jurisdiction under Section 96 of the CPC. Thus, the impugned judgment and decree passed by the learned trial Court being perverse and not sustainable in law, is liable to be set aside. 12. Learned counsel for the appellant/plaintiff has also filed I.A.No.02/2024 under Order 41 Rule 27 read with Section 151 of CPC and I.A.No.04/2023 under Order 26 Rule 9 read with Section 151 of CPC and submits that from the judgment and decree it is apparent that there exists a dispute of boundaries of suit property and the decision on which can only be made by appointing the Commissioner and for ascertaining the boundaries or placing true and real/clear picture, it is necessary that in exercise of jurisdiction under Order 26 Rule 9 read with Section 151 CPC and under the Chhattisgarh Civil Court rules, a competent person may be appointed well versed in this field as the Commissioner at the cost of appellant. Learned counsel also submits that the law in this regard is well settled in various cases that whenever there is dispute of boundary of any immovable property, the appointment of Commissioner competent in this regard is requirement of law and for this reason these applications have been filed for such appointment along with copy of judgment (Annexure ‘A’) with other documents. 13. Reliance has been placed on the decisions of Hon’ble Apex Court in the matter of Suryanarayan Reddy and Others Vs. Nawab Md. Kabiruddin Khan (dead) by LRs and Others reported in (2004) 13 SCC 703 , Joseph John Peter Sandy Vs. Veronica Thomas Rajkumar and Another reported in (2013) 3 SCC 801 and decision of High Court of Sikkin in the matter of Bishnu Maya Rai Vs. Rameshwar Prasad reported in AIR Online 2024 SK 4. 14. Learned counsel for respondents/ defendant Nos. Veronica Thomas Rajkumar and Another reported in (2013) 3 SCC 801 and decision of High Court of Sikkin in the matter of Bishnu Maya Rai Vs. Rameshwar Prasad reported in AIR Online 2024 SK 4. 14. Learned counsel for respondents/ defendant Nos. 1 and 3 supporting the impugned judgment and decree and opposing the applications (I.A.No.02/2024 and 04/2023) submits that the learned trial Court minutely appreciated oral and documentary evidence and has rightly dismissed the suit of the plaintiff and allowed the counter-claim of the defendant Nos. 1 and 3. The plaintiff has failed to prove her claim before the learned trial Court and respondent/defendants have successfully proved their counter-claim and the learned trial Court has rightly passed the decree in favour of defendants. Thus, the appeal as well as applications (I.A.No.02/2024 and 04/2023) being devoid of merit are liable to be dismissed. 15. Heard learned counsel for the parties and perused the material available on record. 16. Before the learned trial Court, both the parties have filed copies of judgments passed in earlier round of litigation with regard to suit property. The details of which are as under :- (i) Copy of judgment dated 16.03.2016 (Ex.P/18) passed by 4 th Civil Judge Class-I, Bilaspur in Civil Suit No.272-A/2015 [Rajesh Kumar Tah Vs. Raj Kumar Tah and Ors] (ii) Copy of judgment dated 24.11.2018 (Ex.D/4) passed by 3 rd Civil Judge Class-1, Bilaspur in Civil Suit No.354-A/2014 [Yogesh Kumar Tah Vs. Ram Kumar Tah & Ors.] 17. In the Civil Suit No.354-A/2014, which was pending between Yogesh Kumar Tah Vs. Ram Kumar Tah, Anil Tah, Smt. Sudesh Mehta, Girish Kumar Tah, Rajesh Kumar Tah, Rajendra Kumar Tah, Rajnish Kumar Tah, Rakesh Kumar Tah and Pawan Kumar Tah, the suit property was Nazul Sheet No.26, Plot No.2/4, area 2115 sq.ft. situated in Gondpara, and the learned trial Court partly decreed this suit holding as under :- 18. And in the Civil Suit No.272-A/2015, which was pending between Rajesh Kumar Tah Vs. Raj Kumar Tah, Smt. Shashi Tah, Yogesh Kumar Tah and Branch Maganer, C.G. State Co-operative Bank Ltd., the suit property was Sheet No.4/1 and 2/4, area 1350 and 367 respectively, total area 1717 sq.ft. situated in Gondpara, Bilaspur, and the learned trial Court dismissed the suit of the plaintiff therein holding that there is non-joinder of necessary party in respect of the relief sought by the plaintiff. 19. situated in Gondpara, Bilaspur, and the learned trial Court dismissed the suit of the plaintiff therein holding that there is non-joinder of necessary party in respect of the relief sought by the plaintiff. 19. It is apparent from the judgment dated 24.11.2018 that the learned trial Court declared the suit property therein (Nazul Sheet No.26, Plot No. 2/4, area 2115 sq.ft situated at Gondpara) of joint ownership and possession of plaintiff with other defendants therein, and in the instant case also the suit property is Nazul Sheet No.26, Plot No.4/1 area 1350 sq.ft. situated in Gondpara, and the learned trial Court dismissed the suit of the plaintiff Laxmi Lakhani who purchased the suit property from Anil Kumar Tah and allowed the counter-claim of the defendant Nos. 1 and 3 herein namely Rajesh Tah and Yogesh Tah and passed the decree, which reads thus :- 20. After hearing the arguments advanced by learned counsel for both the parties, we find that there is dispute regarding the boundaries of suit property and in earlier round of litigations, the suit property was the same. It is informed by both the parties that in compliance of judgment and decree dated 24.11.2018 passed in Civil Suit No.354-A/2014 by the 3 rd Civil Judge Class-I, Bilaspur, the Nazul Officer vide order dated 18.11.2024, got the nazul record of the suit property corrected. Perusal of order dated 18.11.2024 goes to show that the record of plot No.2/4 area 2115 sq.ft., plot No.2/12 area 926 sq.ft. and plot No. 2/14 was got corrected. 21. In the instant case, the learned trial Court, on the basis of pleading of the parties both in plaint and counter-claim, framed as many as 06 issues, out of which, issue Nos. 1 and 6 being significant, for ready reference are reproduced herein as under :- 22. A bare perusal of judgment dated 24.11.2018 (Ex.D/4) goes to show that defendants/respondent herein namely Rajesh Kumar Tah, Rakesh Tah (died) and Yogesh Tah were party in the Civil Suit No.354-A/2014 and the learned trial Court by the judgment and decree dated 24.11.2018, declared the joint ownership of parties of suit property Nazul Sheet No.26, Plot No.2/4 area 2115 sq.ft. 23. While dealing with the mater of appointment of Commissioner for demarcation of area at appellate stage, Hon’ble Sikkim High Court in the matter of Bishnu (supra) held in paras 9 and 10 as under :- “9. 23. While dealing with the mater of appointment of Commissioner for demarcation of area at appellate stage, Hon’ble Sikkim High Court in the matter of Bishnu (supra) held in paras 9 and 10 as under :- “9. In the context of the mater at hand it would be advantageous to refer to M.P. Rajya Tilhan Utpadak Sahakari Sangh Maryadit, Pachama, District Sehore and others V. Modi Transport Service (2022) 14 SCC 345 : (AIROnline 2022 SC 702), where the Supreme Court observed as follows : “37. Order 26, Rule 9 of the Code gives wide powers to the court to appoint a Commissioner to make local investigations which may be requisite or proper to elucidating any matter in dispute, ascertaining the market value of any property, account of mesne profit or damages or annual net profits. Under Order 26, Rule 11, the court has the power to issue a commission in a suit, in which examination of adjustment of accounts is necessary to a person as it thinks fit directing him to make such examination or adjustment. When a court issues such a commission to such a person, it can direct the Commissioner to make such an investigation, examination and adjustment and submit a report thereon to the court. The Commissioner so appointed does not strictly perform a “judicial act which is binding” but only a “ministerial act”. Nothing is left to the Commissioner’s discretion, and there is no occasion to use his judgment or permitting the Commissioner to adjudicate and decide the issue involved; the Commissioner’s report is only an opinion or noting, as the case may be with the details and/or statement to the court the actual state of affairs. Such a report does not automatically form part of the court’s opinion, as the court has the power to confirm, vary or set aside the report or in a given case issue a new commission. Hence, there is neither abdication nor delegation of the powers of functions of the court to decide the issue. Sometimes, on examination of the Commissioner, the report forms part of the record and evidence. [A. Nagarajan v. A. Madhanakumar, 1996 SCC OnLine Mad 17 : (AIR Online 1996 MAD 3)] The parties can contest an expert opinion/Commissioner’s report, and the court, after hearing objections, can determine whether or not it should rely upon such an expert opinion/Commissioner’s report. Sometimes, on examination of the Commissioner, the report forms part of the record and evidence. [A. Nagarajan v. A. Madhanakumar, 1996 SCC OnLine Mad 17 : (AIR Online 1996 MAD 3)] The parties can contest an expert opinion/Commissioner’s report, and the court, after hearing objections, can determine whether or not it should rely upon such an expert opinion/Commissioner’s report. Even if the court relies upon the same, it will merely aid and not bind the court. In strict sense, the Commissioners’ reports are “non-adjudicatory in nature”, and the courts adjudicate upon the rights of the parties.” (Emphasis supplied) 10. Earlier in time in Suryanarayana Reddy and others V. Nawab Md. Kabiruddin Khan (Dead) by Lrs. And others (2004) 13 SCC 703 : (AIROnline 2004 SC 893), the Supreme Court was pleased to hold as follows : “3. The power to appoint a Commission to make local investigation conferred on the Court by Order 26, Rule 9, CPC is available to be exercised by the trial court and also by any court of appeal. Whether the High Court would interfere with the findings of fact or not, is a question which will be gone into at the time of final hearing and all the pleas which are sought to be urged before this Court, are available to be urged before the High Court.” (Emphasis supplied) 24. In the case in hand also, it is apparent from the record that there are two sale deeds and various judgments of the trial Court with regard to the suit property which involves serious dispute of boundaries of the suit property – Ward No. 24, Sheet No. 26, Plot No. 4/1 and 2/4. Thus, looking to the dispute of boundaries, two sale deeds and judgments of the trial Court, we are of the opinion that the dispute cannot be resolved without ascertaining actual area of disputed property and boundary of each plot, and in view of the guidelines of Hon’ble Apex Court referred in Bishnu (supra), the power to appoint a Commissioner to make local investigation conferred on the Court by Order 26 Rule 9 of CPC is available to be exercised by the trial Court and also by any court of appeal. So, the application (I.A.No.04/2023) fled under Order 26 Rule 9 read with Section 151 of CPC is allowed and the impugned judgment and decree dated 12.09.2023 is set aside. 25. So, the application (I.A.No.04/2023) fled under Order 26 Rule 9 read with Section 151 of CPC is allowed and the impugned judgment and decree dated 12.09.2023 is set aside. 25. The learned trial Court is directed to proceed ahead for appointment of a team for local investigation of the suit property and prepare a report of total plot area with boundary according to all previous nazul records and all sale deeds of the suit property executed between all parties. The team so constituted/appointed by the learned trial Court shall consist of two Nazul Officers, two Revenue Officers and one Advocate, who in turn, shall conduct local investigation and the said team with the help of records of Nazul Office and Revenue Office, demarcate the area of disputed property – Ward No. 24, Ram Nagar Ward, Sheet No. 26, Plot No. 4/1 and Plot No. 2/4 & also prepare exact map thereof with boundaries of both the properties. 26. The learned trial Court shall also issue direction that at the time of inspection, both the parties shall remain present with all old record pertaining to disputed property including the old sale deeds. The Nazul Officer and Revenue Officer shall remain present with oldest record which they have till date pertaining to the suit property. The learned trial Court is at liberty to impose any other condition or direction, as it deem fit. 27. The leave is also granted to the parties to amend their pleadings and produce additional documents pertaining to the suit property, if they so desire, and the parties can contest an expert opinion and the Court, after hearing objections, can determine whether or not it should rely upon such expert’s opinion on the Commissioner’s report and after that the learned trial Court to decide the case afresh on all issues. 28. Fees of the Advocate so appointed, who will be a member of team for local investigation of the suit property, shall be fixed by the learned trial Court which shall be born by both the parties. 29. The appeal is accordingly disposed of in terms of above. 30. Let a decree be drawn up accordingly. 31. Parties to bear their respective costs. 32. The parties are directed to appear before the learned trial Court on 01.04.2025. 33. Record of the trial Court be sent back forthwith.