Ganga Prasad Pandey vs Gokul Prasad Pandey

Heard through video conferencing.

Petitioner has filed the present misc. petition challenging the order dated 04.12.2019, contained in Annexure P/6. By the impugned order dated

04.12.2019, application filed by the petitioner under Section 151 of Code of Civil Procedure for appointment of Commissioner was rejected by First

Civil Judge Class 2, Rampur Baghelan, District Satna (M.P.). Learned Civil Judge has rejected the application on the ground that earlier a

Commissioner was appointed and said Commissioner has filed its report on 21.11.2017, after filing of report, he was examined and cross-examined in

the Court as a witness. After examination of Commissioner i.e. Revenue Inspector, application is again filed for re-appointment of Commissioner.

Learned Civil Judge rejected the application on the ground that once Commissioner has been appointed and he has submitted his report and he has

also been examined and cross-examined, therefore, there is no basis to issue a new commission for measurement of disputed khasra No. Counsel

appearing for the petitioner has challenged the impugned order on the ground that report is ambiguous and did not elucidate the situation on the spot.

The Commissioner only prepared the spot map as per the possession of the parties contrary to the intention of the Court in issuing commission. Khasra

No. 437/1 was not measured and area of construction and stage of construction was not shown in the report.

Counsel appearing for the petitioner has relied on the judgment of Apex Court reported in 2020 (1) M.P.L.J. 53, Ramlal and others vs Salig Ram and

others, wherein it has been held that when report of Local Commissioner under Section 151 CPC is ambiguous and did not elucidate the position on

spot, then to elucidate the situation on spot a fresh commission is to be issued. On aforesaid basis, petitioner has challenged the impugned order and

prayed for issuance of a fresh commission.

On going through the report of Revenue Inspector, Rampur Baghelan, District Satna, it is found that commission was issued to demarcate Khasra No.

437/1 and to show its boundaries clearly, but in the report, it is mentioned that demarcation was done on the basis of possession. Actual demarcation

of Khasra No. 437/1 was not done by the Revenue Inspector. Commissioner was further directed to find out whether there is any construction on

Khasra No. 437/1, measuring 0.036 hectare and if there is construction, then on what area construction is done. As far as the second query was

concerned, Revenue Inspector has clearly stated that house of Ganga Prasad Pandey is built on 0.024 hectare of land and 0.012 hectare is kept for

use, which shows that Araji No. 437/1 has total area of 0.036 hectare. In the civil suit, plaintiff has stated that Ganga Prasad, who is son of Gajadhar

Prasad, has received Araji No. 437 from his father, measuring 0.036 hectare. As per demarcation made on spot, Ganga Prasad was found in

possession of complete 0.036 hectare, therefore, it cannot be said that there was any encroachment done by Gokul Prasad.

In the judgement of the Apex Court in 2020 (1) M.P.L.J. 53, Ramlal and others vs Salig Ram and others, it is held by the Apex Court that if the Local

Commissioner's report was found wanting in compliance of applicable instructions for the purpose of demarcation, it was only a matter of irregularity

and could have only resulted in discarding of such a report and requiring a fresh report but any such flaw, by itself, could have neither resulted in

nullifying the order requiring appointment of Local Commissioner and for recording a finding after taking his report nor in dismissal of the suit. In this

case, no such irregularity is found in the report and petitioner had ample opportunity to cross-examine the said witness. It is for the trial Court to do

appreciation of report.

Learned trial Court has not committed any error in rejecting the application filed by the petitioner. Spot examination report was prepared by

Revenue Inspector on 12.09.2017 and thereafter, Revenue Inspector was examined in the Court on 21.01.2019. Petitioner did not raise any objection

initially and it was only when examination of Revenue Inspector, he moved an application after a period of about seven months raising his grievance

that report of Revenue Inspector is not as per the directions issued by the Court.

Considering the aforesaid facts and circumstances of the case, I do not find any error in the impugned order passed by learned Civil Judge Class 2,

hence, misc. petition filed by the petitioner is dismissed.