Nand Lal Mourya And Ors vs Jagmohan And Ors

Sanjay K. Agrawal, J

The substantial question of law involved, formulated and to be answered in the second appeal preferred by the plaintiffs is as under:-

"Whether the trial Court is justified in rejecting an application under Order 26 Rule 9 of the Code of Civil Procedure filed by appellants/plaintiffs for appointment of Commissioner ignoring the fact that there is dispute with regard to the identification of land as to whether the area encroached is a part of Khasra No.23/01 owned by plaintiffs or Khasra No.24/01 owned by defendant No.1 ?

[For the sake of convenience, the parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court].

The plaintiffs filed a suit for possession based on title and permanent injunction stating inter-alia that they have purchased the suit land by way of registered sale deed dated 14.8.90 and got their names mutated in revenue records and they have been dispossessed by defendant No.1 on 21.12.94 from area 840 sq.ft. by laying down foundation stone leading to filing of suit for aforesaid reliefs.

The defendant set-up a plea that he has not encroached upon the land in khasra No.23/1, he has constructed his house on the government land in khasra No.24/1 and staying therein for last 15 years, as such, the suit is liable to be dismissed.

During pendency of the suit, the plaintiffs filed an application under Order 26 Rule 9 of the CPC for appointment of local Commissioner on 13.4.99, which was rejected by the trial Court on 23.4.99 holding that it has been filed at belated stage and that too to fill-up lacuna in evidence which they have undertaken, therefore, that application cannot be granted. Thereafter, the trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 25.6.1999, dismissed the suit holding that the plaintiffs are owners of the suit land bearing khasra No.23/1, but they have failed to establish that on 21.12.94 defendant No.1 has encroached upon the plaintiffs' land and constructed his house, which the first appellate Court has affirmed, against which, this second appeal under Section 100 of the CPC has been preferred by the appellants/plaintiffs, in which substantial question of law has been formulated, which has been set-out in the opening paragraph of this judgment.

Mr.A.K.Athaley, learned counsel for the appellants/plaintiffs, would submit that both the Courts below are absolutely unjustified in dismissing the suit without directing appointment of local Commissioner under Order 26 Rule 9 of the CPC to find out whether the suit land is part of khasra No.23/1 or it is part of khasra No.24/1, as such, in view of the judgment of this Court in Smt. Santoshi Jangade v. Abhishek Singh & Another 1, the judgment and decree of both the Courts below are liable to be set aside and the matter be remitted to the trial Court for appointment of Commissioner and thereafter to decide the matter afresh by granting the appeal.

Mrs.Prabha Sharma, learned counsel for respondent No.1/defendant No.1, would submit that both the Courts below have concurrently held that defendant No.1 has not encroached upon the plaintiffs' land and he is in possession of part of khasra No.24/1, as such, the second appeal deserves to be dismissed. 1 2018(2) C.G.L.J. 269

I have heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumscription.

The trial Court has clearly held that the plaintiffs are title-holders of part of khasra No.23/1, but has held that they have failed to prove that defendant No.1 has encroached upon their land and according to defendant No.1, he is in possession of part of khasra No.24/1, as such, it is the case where dispute is about the identity of suit land, whether it is part of khasra No.23/1 owned by the plaintiff or khasra No.24/1 owned by defendant No.1, which can only be established by appointing Revenue Commissioner for ascertaining the identity of land under Order 26 Rule 9 of the CPC. In this connection, pertinent decision of the Supreme Court and the Madhya Pradesh High Court may be noticed profitably.

The Supreme Court in the matter of Shreepat Vs. Rajendra Prasad & others 2 in identical fact situation remanded the matter to the trial Court for appointing Survey Commission to find out the exact position. It was observed as under:-

"3. The principal contention raised by learned Counsel for the Appellant is that though there was a serious dispute with regard to 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 identity established and decreed the suit of the Respondent only on the basis of oral evidence which was not sufficient for the 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 2 JT 2000 (7) SC 379 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 aside 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, the Supreme Court in the matter of Haryana Waqf Board Vs. Shanti Sarup and others 3 has held as under:-

"6. It is also not in dispute that even before the appellate court, the appellant Board had filed an application 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."

Very recently, in the matter of Ram Lal & Ors. v. Salig Ram & Ors. 4 the Supreme Court with regard to necessity of appointment of Local Commissioner under Order 26 Rule 9 of the CPC held as under:-

"18. In the totality of circumstances, in our view, for just and effectual determination of all the questions involved in the matter, the proper course is of issuing a fresh Commission and for direction to the Trial Court to decide the entire suit afresh on the issues as originally framed as also on the additional issues after taking the report of the Local Commissioner afresh and affording an opportunity to the parties to submit their objections, if any."

The Division Bench of the High Court of Madhya Pradesh in 3 (2008) 8 SCC 671 4 JT 2019 (2) SC 106 the matter of Durga Prasad Vs. Parveen Foujdar & others 5 has held that in absence of agreed map; appointment of commissioner is necessary. It was held as under:-

"25. In cases where there is a dispute as to encroachment, the fact whether there is such an encroachment or not cannot be determined in the absence of an agreed map, except by the appointment of a Commissioner under Order 26, Rule 9 of the CPC. ON 15.09.1996 the plaintiff, accordingly, applied for the issue of a commission to the Director of Land Records for a theodolite survey of the plaintiff's leasehold area. The court by its memo dated 11-10-1966 enquired from Director of Land Records whether he was prepared to undertake the work. The Director of Land Records by his memo dated 01-12-1966 signified his willingness. The Collector's memo dated 19-04-1969 shows that on the dates fixed for the purpose, neither the plaintiff nor any person authorized by him was present at the site. For reasons best known to the plaintiff, he did not press the application for commission vide order sheet dated 02-01-1979. The court accordingly, by its memo dated 10-01-1970 recalled the writ of commission issued to the Director of Land Records. The plaintiff, therefore rested his case on the plaint map, Ex.P-1, and his oral evidence. It is needless for us to stress that no finding as to the alleged encroachment can be reached on the oral evidence adduced by the plaintiff. The plaintiff has not examined any witness to prove that he had surveyed the area, and found on actual measurements that the pit EFGH market in the plaint map, Ex.P-1, fell within his leasehold area."

Since there is serious dispute between the parties with regard to boundary/area of the scheduled suit land specially with regard to identity of land as to whether the suit land is part of Khasra No.23/1 owned by the plaintiff or Khasra No.24/1 owned by defendant No.1, therefore, the trial Court should have got the identity of land established by appointing local commissioner 5 1975 MPLJ 801 under Order 26 Rule 9 of the CPC and the same has resulted into serious miscarriage of justice and the trial Court thereby committed an illegality in rejecting the application filed under Order 26 Rule 9 of the CPC on the ground of delay and the first appellate Court perpetuated the illegality by dismissing the appeal.

In view of above, the judgment and decree passed by both the Courts below are hereby set aside. The application filed by the plaintiffs before the trial Court under Order 26 Rule 9 of the CPC is allowed with the following directions:-

(i) The Revenue Inspector of the concerned circle is appointed as local Commissioner. However, the trial Court is at liberty to appoint/replace/substitute another Revenue Inspector, if occasion so arises.

(ii) The trial Court will issue writ of commission to the concerned Revenue Inspector to submit his report regarding boundary or identity of the suit land within 30 days from the date of receipt of writ of commission.

(iii) After receipt of the report of the local commissioner, the parties will be entitled to proceed in accordance with law .

(iv) The Collector, Raigarh to see that demarcation is done expeditiously by the Revenue Inspector so appointed by the trial Court and report is submitted well in time.

The second appeal is allowed to the extent indicated hereinabove. The trial Court is directed to decide the suit within 3 months from the date of receipt of copy of this order. The substantial question of law is answered accordingly. No cost(s).

A decree be drawn-up accordingly.