Mohanlal Soni vs The State of Madhya Pradesh

U.C. Maheshwari, J.—Heard on the question of admission. The petitioners have filed this petition under Article 227 of the Constitution of India being aggrieved by the order dated 5.9.2013 (Annexure-P-1) passed by 1st Civil Judge Class-II Kotma, in Civil Original Suit No. 30-A/12, whereby their application filed under Order 26 Rule 9 for appointment of Commission and call the report of the disputed property which is an open plot, has been dismissed.

Initially the case was argued at length by the petitioners'' counsel and in support of his arguments, the reliance was placed on various reported cases in the matter of Tara Singh vs. Shri Parshvanath Digember Jain Mandir Pisanhari Madhiya Trust reported in 2002(5) MPHT 5 (NOC), in the matter of Haryana Waqf Board Vs. Shanti Sarup and Others, , and in the matter of Union of India (UOI) and Others Vs. Dipak Mali, , but in view of the facts and circumstances of the cited case and the case at hand which are absolutely distinguishable in view of the decision of this Court in the matter of Laxman vs. Ramsingh reported in 1982 MP Weekly Note, Note 255, holding that the local investigation could not be directed for collection of the evidence for either of the parties, on making certain query from the counsel on which instead to argue further, he seeks permission to withdraw this petition as not pressed with liberty to get demarcated the disputed plot through revenue authorities by initiating the appropriate proceedings under the available provisions of law and submit such demarcation report in the trial Court in support of his suit.

Considering the aforesaid prayer, without expressing any opinion on impugned order so also keeping in view the principle laid down in the aforesaid cited case Laxman (supra), this petition is hereby dismissed as withdrawn and not pressed with aforesaid liberty as prayed by the counsel.

The petitioner is further extended a liberty to file the aforesaid demarcation report in the trial Court, if on his request the demarcation is carried out and it''s report is prepared by the revenue Department. Certified copy as per rules.