Shashi Tomar vs Ashok Rajoriya

Sujoy Paul, J.—Petitioner/plaintiff filed a suit for declaration and permanent injunction, which was registered as Civil Suit No. 10A/2011. The written statement was filed by the other side. Along with plaint, the petitioner filed a map. In the coloured map, the petitioner has shown the disputed portion. It is stated in paras 1, 3 and 4 of plaint that from certain portion of the map earmarked properly, it is clear that there is an effort of encroachment on the disputed portion. In the written statement, respondents No. 2 and 3 disputed the map. It is stated that the plaintiff has no relation with the disputed portion. It is further stated that on disputed portion the defendants No. 2 and 3 have possession. In para 4 of written statement, the measurement mentioned in the map by red ink is also disputed.

The petitioner/plaintiff filed an application under Order 26 Rule 9 CPC with a prayer that the lands situated in survey No. 1269 be investigated by appointing a Commissioner. The prayer was opposed by filing reply. The court below by impugned order dated 14.8.2012 disallowed the application, which is under challenge in this petition filed under Article 227 of the Constitution.

Shri A.K. Saxena, learned counsel for the petitioner submits that there is no agreed map between the parties. There is a dispute between the parties with regard to the map and also on the question of encroachment. Thus, as per the judgments reported in Durga Prasad Vs. Mst. Parveen and Others, ; 2012 (III) MPWN SN 62 (Beejanwala Talukdar (Smt.) v. Radhakrishna Rai); and 1988 (II) MPWN SN 23 (Hari Charan v. Ghanshyam Das), the application should have been allowed. He submits that the court below has erred in not allowing the application.

Per contra, Shri Ashish Saraswat, learned counsel for the respondents No. 2 and 3 supported the order and submits that an application under Order 26 Rule 9 CPC cannot result into an order by the court for the purpose of collecting evidence. He supported the order of the court below by placing reliance on 2002 (1) MPWN SN 105 (Chunnilal v. Ramchandra) and Ashutosh Dubey and Another Vs. Tilak Grih Nirman Sahakari Samiti Maryadit and Another, . In addition, he submits that the petitioner can take assistance of Section 129 of MP Land Revenue Code for the purpose of actual measurement of land.

I have heard learned counsel for the parties and perused the record.

A bare perusal of pleadings of the parties shows that there is no agreed map between the parties. There exists a dispute regarding encroachment. In the opinion of this Court, in the aforesaid factual backdrop, the Division Bench judgment of this Court will hold the field. In Durga Prasad (supra), this Court opined as under:-

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 Code of Civil Procedure.

In Beejanwala Talukdar (supra), this Court opined as under:-

There is no agreed map. In the absence of any agreed map, the trial Court could not have decided the issue of encroachment. {See Haryana Waqf Board Vs. Shanti Sarup and Others, }, and decision of Division Bench of this Court in the case of Durga Prasad Vs. Mst. Parveen and Others, . For the aforementioned reasons, the substantial question of law framed by this Court is answered in negative and in favour of the appellant.

In the present case also, there is no agreed map and there exists a dispute regarding encroachment. Thus, the proper course is to appoint a Commissioner under Order 26 Rule 9 CPC.

So far the judgment of Chunnilal (supra) relied by Shri Saraswat is concerned, the said judgment deals with a situation where prayer was to ascertain actual possession over disputed property. In that situation, this Court opined that the evidence cannot be collected by issuance of commission. In Ashutosh Dubey (supra) this Court opined that issuance of commission for investigation cannot be for deciding possession on the property. The said judgments have no application in the facts and circumstances of the present case. In the present case, the petitioner has not prayed for deciding the issue regarding possession of the parties. On the contrary, he prayed for appointment of a Commissioner because there was no agreed map and question of encroachment is involved. Para 4 of his application under Order 26 Rule 9 CPC makes it crystal clear.

In the opinion of this Court, the court below has mechanically rejected the application. In absence of agreed map and deciding the question of encroachment, the suit cannot be effectively decided. The court below has erred in holding that the attempt of the petitioner is to collect the evidence.

As analyzed, the impugned order cannot be permitted to stand. The order dated 14.8.2012 is set aside. The application under Order 26 Rule 9 CPC is allowed. The court below is directed to proceed from that stage in accordance with law. No cost.