Anjana Rani And Another vs Rajendra Alai And Others

Manoj K. Tiwari, J

Heard learned counsel for the parties.

This is defendants' petition under Article 227 of the Constitution against order dated 24.07.2018 passed by learned First Additional Civil Judge (Senior Division), Dehradun, whereby plaintiff's (respondent no. 1 herein) application under Order 26 Rule 9 C.P.C. for appointment of a Commission was partly allowed. The judgment and order dated 16.04.2019 passed by learned Additional District Judge VIII, Dehradun in Civil Revision No. 161 of 2018 has also been challenged in this petition.

It transpires that respondent no. 1 filed a suit for permanent injunction against the petitioners. Petitioners filed written statement and raised a counter claim and asserted their title over the suit property. Both the parties applied for temporary injunction and the learned trial Court granted temporary injunction in favour of the plaintiff.

The defendants (petitioners herein) challenged the order of temporary injunction by filing Misc. Appeal, which was allowed by learned District Judge, Dehradun by holding that if the temporary injunction is allowed to remain, then the plaintiff would raise construction, which will frustrate the counter claim filed by the defendants. The Appellate Court further observed that identification of the property needs to be done first. Respondent no. 1 challenged the order passed in Miscellaneous Appeal by learned District Judge by filing WPMS No. 1387 of 2014. A coordinate Bench of this Court disposed of the said writ petition vide judgment and order dated 05.11.2014 with the following observations:-

Both, the plaintiff and defendants moved appeals against the injunction order. The lower appellate court, after hearing the parties, came to the conclusion that if the injunction is permitted to remain, then the plaintiff would raise its construction on the property on which the defendants have also raised their counter claim. This would frustrate the purpose of proceedings which are pending. The lower appellate court, however, held that before proceeding in the matter the identification of the land needs to be done first. The claim of the plaintiff/petitioner was that he had purchased the property from the brothers of the defendants/respondents on 11th June, 2009 whereas the same brothers had given gift deed in favour of the sisters (present respondents/defendants) on 2nd July, 2010. Obviously, in case the land is the same, the gift deed has absolutely no value. But the claim of the defendants/respondents before this Court is that the land which was given in gift to them is not the same land.

This Court is by and large in agreement with the finding of the lower appellate court. Consequently, keeping in view the claim and counter claim, this Court is of the clear opinion that the trial court must frame a preliminary issue as to the identification of the land itself and after identifying the land, pass appropriate orders. Keeping in view, the interest of justice, the original vendor of the property i.e. the brothers of the defendants be made a party in the trial court proceedings.

The plaintiff had filed an application under Order 26 Rule 9 of C.P.C. before the trial Court and the defendants (petitioners herein) filed their objection on 30.08.2014. Thereafter, on 26.10.2015, issue no. 3 was amended by the trial court as follows:-

"Whether the property mentioned in the suit and counter claim is identifiable. If yes, then its effect."

Learned trial Court directed both the parties vide order dated 23.11.2015 to lead evidence as to the identity of their share in the property in dispute.

Mr. Hari Mohan Bhatia, learned counsel for petitioners submits that the said order was never challenged by respondent no. 1 before any higher forum. He further submits that, instead of leading evidence in terms of the order passed by learned trial Court on 23.11.2015, the plaintiff/respondent no. 1 pressed his application under Order 26 Rule 9 of C.P.C. after four years, which was allowed by learned trial Court vide order dated 24.07.2018. Petitioners challenged the said order by filing Civil Revision No. 161 of 2018, which has been dismissed as not maintainable.

Heard learned counsel for the parties and perused the record.

From the order passed by coordinate Bench of this Court on 05.11.2014, it is apparent that this Court had expressed an opinion that there is a dispute as to identity of the suit property, accordingly, direction was issued to the trial court to frame a preliminary issue on that aspect.

Order 26 Rule 9 C.P.C. enables the trial Court to issue a Commission in order to make local investigation. The object of local investigation is not to collect evidence which can be taken in court, but to obtain evidence which from its peculiar nature can only be had on the spot. Case of boundary dispute and disputes about identity of land are instances when a court should order local investigation under Order 26 Rule 9 of the Code. The disputes regarding the boundaries can be best adjudicated by taking the assistance of the expert who on measurement can express his opinion. The Hon'ble Apex Court in the case of Haryana Waqf Board Vs Shanti Sarup & others reported in (2008) 8 SCC 671 has held that in dispute regarding boundary and area, an expert person can be appointed as a Commissioner for demarcation of the land.

Hon'ble Supreme Court in the case of Shreepat Vs. Rajendra Prasad & others reported in 2000 (7) JT 379 has held as under:-

"3. The principal contention raised by learned Counsel for the Appellant is that though there was a serious dispute with regard to the identity of the land in dispute, whether the land in dispute formed part of Khasra No. 257/3 or Khasra No. 257/1, the courts below did not get the identity established and decreed the suit of the Respondent only on the basis of oral evidence which was not sufficient for he purpose of establishing the identity of the land in dispute at the spot.

In our opinion, this contention is correct. Since there was a serious dispute with regard to the area and boundaries of the land in question, especially with regard to its identity, the courts below, before decreeing the suit should have got the identity established by issuing a survey commission to locate the plot in dispute and find out whether it formed part of Khasra No. 257/3 or Khasra No. 257/1. This having not been done has resulted in serious miscarriage of justice. We consequently allow the appeal, set side the order passed by the courts below as affirmed by the High Court and remand the case to the trial court to dispose of the suit afresh in the light of the observations made above and in accordance with law."

Likewise, in the case of Rajendra & Co. Vs. Union of India and others reported in (2000) 6 SCC 506, Hon'ble Supreme Court has held as under:-

"2. We cannot appreciate why the High Court had interfered with that part of the order passed by the trial court appointing a Commission for inspecting the site and to file a report and to measure the work done by the respondent. The learned counsel for the appellants submits that the respondent will not be made responsible for the cost or expenses which may be involved in the Commission to file the report. The question whether the Commissioner's report is finally acceptable or not would be decided by the Court dehors the order passed by the authority concerned. In the light of the said innocuous position it was not necessary for the High Court to alter the trial Court's order. We, therefore, set aside the impugned order of the High Court and restore the order of the trial court in full measure, with the rider that this action will be without prejudice to the right of the parties to substantiate the respective contentions regarding the tenability or untenability of the Commissioner's report and its conclusions."

Similarly, in the case of Haryana Waqf Board Vs. Shanti Sarup and others reported in (2008) 8 SCC 671 Hon'ble Supreme Court has held as under:-

"3. The dispute that was raised by the parties before the court was whether the respondent had encroached upon any land belonging to the appellant-Board. Therefore, it cannot be in dispute that the dispute was in respect of the encroachment of the suit land.

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 of the 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 unauthorized possession in respect of the suit land by them as per paragraph 3 of the plaint. But the only controversy between the parties was regarding demarcation of the suit land because land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial court was wrongly rejected.

It is also not in dispute that even before the appellate court, the appellant-Board had filed an application for appointment of a Local Commissioner for demarcation of the suit land. In our view, this aspect of the matter was not at all gone into by the High Court while dismissing the second appeal summarily. The High Court ought to have considered whether in view of the nature of dispute and in the facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land."

A learned Single Judge of Hon'ble Karnataka High Court in the case of Anil Kamalkar Shirodkar Vs. Dudhappa Santu Patil and another reported in ILR 2001 KAR 5013 has held as under:-

"2. After hearing the Counsel for the petitioner, I find no merit in the revision to interfere with the order in question which is a discretionary order passed by on the basis of material available before the Trial Court. In a suit for injunction, when there is contest between the parties regarding the encroachment of the property or otherwise and when the correct extent and boundaries of the property are in dispute, it is just and necessary that a survey has to be conducted and the boundaries of the properties have to be identified. In such a situation, the appointment of a Commissioner should not be mistaken as appointment of Commissioner for collecting evidence for a party to the suit. In the present suit, the parties are neighbours and attempt of trespass and encroachments is being alleged, in that context the appointment of Commission does not appear to be illegal.

The Counsel for petitioner brought to my notice the ruling of this Court in Puttappa v. Ramappa. After carefully going through the facts and ratio laid down, I am of the view that the ratio has no application to the facts of the case. Unlike in the cited case the appointment of Commissioner is not sought to enquire into the question of possession. On the other hand, the Commission is appointed to demarcate the boundaries and to demarcate the actual extent of the properties in question. In that view of the matter, the appointment of the Commission for measurement of the property and to demarcate the boundaries and correct extent of the properties as per the claims made by the parties would be fully justified. However, the Commissioner cannot go into the question as to who is in possession of the property. Accordingly, the Revision is dismissed."

In the present case, there is a dispute regarding identity of the property in question, therefore, learned trial court was justified in issuing a commission for getting the suit property identified through Amin. Learned trial court has rightly disallowed the prayer made by the plaintiff (respondent No. 1 herein) to get the report regarding electricity meter.

Thus, there is no scope of interference with the impugned orders passed by the courts below. Accordingly, the writ petition is dismissed.