Sunil Kumar Chourasiya vs Kuldeep Chaddha And Others

With the consent of the parties, the matter is heard finally.         Â

In the instant petition filed under Article 227 of the Constitution of India, a challenge has been made to the order dated 27-01-2018, passed by 3rd Civil

Judge Class-I Chhindwara, whereby an application filed by the respondents /defendants for appointment of Commissioner under Order 26 Rule 9 CPC

has been allowed.

The facts necessary for disposal of the present petition are that the petitioner filed a civil suit seeking relief of injunction. Claim in the suit was

based on the ground that the petitioner purchased land bearing Khasra Nos.1766/1 & 1774/85 from the respondent no.3 vide registered sale deed

dated 15-12-2010. Pursuant to the sale, name of the petitioner came to be recorded in the revenue records. It was further stated in the plaint that the

respondent nos. 1 and 2 are owners of land bearing Khasra Nos. 1766 and 1774/4, however, the respondent nos. 1 and 2 are forcibly trying toÂ

interfere with the possession of the petitioner.

The respondent nos.1 and 2 filed written statement and opposed the claim of the petitioner. In the written statement, it was inter-alia stated that

vendor of the petitioner had no authority to alienate the property in question to the petitioner. It was further alleged that the disputed property was

given to the petitioner on license, however after termination of license, the petitioner did not hand over possession to the respondent nos. 1 and 2.

The respondents filed an application for appointmentof Commissioner under Order 26 Rule 9 CPC. The said prayer was opposed by the

petitioner.

Learned counsel for the petitioner submitted that sofar the possession of the petitioner is concerned, the same is admitted by the respondents.

However, the said possession has been admitted on the strength of the contention that the petitioner was given the possession on license for a

specified period. However, upon perusal of the record, the trial court has found that the boundaries of the suit land, are seriously disputed by the

parties. The relevant part of the consideration by the trial court is extracted as under :

^^vfHkys[k ls nf'kZr gksrk gS fd oknh }kjk ;g okn ekStk fNanokM+k [kkl] i0g0ua0 22] rglhy o ftyk fNanokM+k fLFkr Hkwfe [kljk Ø0 1766@1 ,oa

1774@85 esa ls mRrj nf{k.k 120 fQV o iwoZ if'pe 70 fQV dqy 8400 oxZfQV Hkwfe foØ; i= fnukad 15-12-2010 ds vk/kkj ij mlds LoRo ,oa vf/kiR;

dh gksuk vfHkopfur djrs gq, mlds vkf/kiR; esa gLr{ksi u fd;s tkus ckor~ LFkk;h fu""ks/kkKk gsrq izLrqr fd;k x;k gS tks mlds uke [kljk Ø0 1766@31 o

[kljk Ø0 1774@91 ds :i eas jktLo fjdkMZ esa ntZ gS rFkk izfroknhx.k }kjk iz'uxr vkosnu i= esa ,oa oknksRrj esa oknxzLr laifRr dks muds LokfeRo

dh gksuk izdV fd;k x;k gSA izfroknhx.k dk ;g Hkh dguk gS fd oknh ds i{k esa fu""ikfnr foØ; i= fnukad 15-12-2010 esa of.kZr laifRr dkYifud gS mldk

dksbZ HkkSfrd vfLrRo ugha gSA oknh ds uke ntZ Hkwfe dh prqZlhek,a ,oa izfroknh Ø0 1 ds uke nt Hkwfe [kljk Ø0 1766@28 o [kljk Ø0

1774@82 dh prqZlhek,a ,d gh gSaA izdj.k esa layXu oknh ds i{k esa fu""ikfnr foØ; i= fnukad 15-12-2010 ds voyksdu ls nf'kZr gksrk gS fd mlesa

Hkwfe [kljk Ø0 1766@1 [kljk Ø0 1774@85 esa ls mRrj nf{k.k 120 fQV o iwoZ if'pe 70 fQV dqy 8400 oxZfQV Hkwfe oknh }kjk Ø; fd;k tkuk

nf'kZr gksrk gS ftlds mRrj esa jkLrk] nf{k.k esa fodzsrk vk'kh""k firk vHk; dqekj ,oa fexykuh dh tehu] iwoZ esa dLrwjhyky pM~Mk dk edku o if'pe

esa lsokjke iokj dk edku ys[k gS ,oa izfroknh dqynhi ds i{k esa fu""ikfnr foØ; i= fnukad 31-03-1980 ds voyksdu ls nf'kZr gksrk gS fd mlesa Hkwfe [kljk

Øa0 1766 o [kljk Øa0 1774@4 esa ls mRrj nf{k.k 100 fQV o iwoZ if'pe 70 fQV dqy 7000 oxZfQV Hkwfe izfroknh }kjk Ø; fd;k tkuk nf'kZr gksrk

gS ftlds mRrj esa jkLrk] nf{k.k esa foØsrk vHk; dqekj dh tehu] iwoZ esa dqynhi pM~Mk dh vkjk e'khu o if'pe esa lsokjke iokj dk edku fLFkr gksuk

ys[k gSA oknh ,oa izfroknh dza0 1 ds i{k esa fu""ikfnr nksuksa gSA oknh ,oa izfroknh dza0 1 ds i{k esa fu""ikfnr nksuksa fodz; i=ksa ds voyksdu ls ;g

rks nf'kZr gksrk gS fd nksuksa i{k }kjk ewy Hkwfe [kljk dza0 1766 ,oa 1774 ds gh cVkadu esa ls gh Hkw[kaM dz; fd;s x;s gS rFkk nksuksa fodz;

i=ksa esa oknh ,oa izfroknh dza01 }kjk dz; fd;s x;s Hkw[kaMksa dh prqZlhek,a yxHkx leku gS rFkk ,d gh prqZlhek ds e/; nks fHkUu&fHkUu [kljk

dzekad dh Hkwfe fLFkr gksuk laHko ugha gSA^^

Learned counsel for the petitioner submitted that the order passed by the trial court for appointment of Commissioner is contrary to the judgments

passed by this court in the cases of Shivnarayan Vs. Koshalya Bai , 2012(II)MPWN 50, Manothar Kokne Vs. Smt. Rampyari Mishra 2012(I) MPWN

129 and also relied on the judgment passed by a Coordinate Bench in the case of Suryabhan Singh Vs. State of M.P.(W.P.No.3584/2004) decided on

06-02-2016.

Learned counsel for the respondents submits that the appointment of the Commissioner under the provisions of Order 26 Rule 9 is a discretionary

power and in the present case the court has exercised its discretion after taking into consideration the record, hence no interference is called for in a

petition under Article 227 of the Constitution of India.

In the present case, it is noted that the suit is at the preliminary stage and no evidence has been adduced by the parties. Therefore, the judgment laid

down in the case of Shivnarayan (supra) shall not be applicable to the facts of the present case. Here the trial court found that there is a dispute about

the demarcation of the boundaries of the suit land as described in the sale deed. In the case of Manothar Kokne(supra), this court has held that if

there is a dispute in respect of the ownership of the disputed property the burden is on the plaintiff to prove that when he purchased it. In the present

case the court has not directed for appointment of the Commissioner in respect of the ownership of the disputed property. The facts of the present

case are different. In the case of Suryabhan Singh (supra) this court held that the provisions of Order 26 Rule 9 are discretionary in nature and if

application for appointment of Commissioner is filed for collecting the evidence, the same ought to have not to be considered. In the present case, the

suit is at the preliminary stage and therefore, it cannot be held that the defendants have filed an application as an after thought for collecting the

evidence.

The moot question is to be decided in the suit is that whether the property in question is belonging to the plaintiff or the defendants. Both the parties

are claiming ownership right on it. The court has found that there is a dispute about the demarcation of the property in question and its identity, and

both parties are claiming it to be on their own on the basis of their documents of title. Then it is incumbent to issue a commission to get the land

identified. The provisions of Order 26 Rule 9 has been considered by the Division Bench of this court in the case of Durga Prasad Vs. Praveen

Foujdar and others, 1975 M.P.L.J. 801Â and also in the case of Prembai W/o Omkarlal and others Vs. Ghanshyam S/o Vallabhdas and others,

2010(3) M.P.L.J. 345 and Jaswant S/o Kashi Ram Yadav Vs. Deen Dayal, 2011(2)M.P.L.J. 576, relying on the judgment passed by the Apex

Court in the case of Shreepat Vs. Rajendra Prasad and others (2000) 6 SC 389 held that in case of  dispute about the demarcation of the

property in question, it is the duty of the court to issue commission to get the land in dispute demarcated and for its identification. Even no application

from any party is required for that purpose.

In view of the aforesaid, I do not find any illegality orperversity in the order passed by the court below while allowing the application for

appointment of Commissioner.

Even otherwise I do not find any illegality or perversity of approach in the order impugned in the present writ petition. Even otherwise, it is

settled law that jurisdiction under Article 227 of the Constitution of India cannot be exercised to correct all errors of subordinate Courts within its

limitation. It can be exercised where the order is passed in grave dereliction of duty and flagrant abuse of the fundamental principle of law and justice.

[See. Jai Singh and another vs. MCD, (2010) 9 SCC 385 and Shalini Shetty vs. Rajendra S. Patil, (2010) 8 SCC 329].

Further, a Co-ordinate Bench of this Court in the case of Ashutosh Dubey and another vs. Tilak Grih Nirman Sahakari Samiti Maryadit, Bhopal

and another, 2004 (2)MPHT 14 held that supervisory jurisdiction under Article 227 of the Constitution of India is exercised for keeping the subordinate

courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a

jurisdiction which it does have or the jurisdiction through available is being exercised by the Court in a manner not permitted by law and failure of

justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. Be it a writ of certiorari or the

exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied - (i) the

error is manifest and apparent on the fact of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law;

and (ii) a grave injustice or gross failure of justice has occasioned thereby.

In view of the aforesaid enunciation of law, the instant petition is devoid of merit and is hereby dismissed. The order impugned in the present

writ petition passed by the Court below is upheld.