Vikashchandra Mishra vs State of M.P. and another

The petitioner has filed the present petition under

Article 227 of the Constitution of India challenging the

order dated 08.08.2016 passed by IVth Civil Judge Class-I,

Rewa in Civil Suit No.81A/2016, thereby rejecting the

application preferred by the petitioner under Order 26 Rule

9 of the Code of Civil Procedure (hereinafter in short

referred to as "the Code").

The petitioner has filed a civil suit for declaration and

permanent injunction in respect of the land bearing Khasra

No.65/5/Ka having area 1250 sq.ft. and land out of Khasra

No.65 area 425 sq.ft. situated village, Khaira, Patwari Circle

Nipaniya, Tahsil-Huzur, District-Rewa. The suit was filed on

the ground that the defendant No.4 Govind Prasad Patel had

sold the land admeasuring 3000 sq.ft. out of Khasra No.65 by

a registered sale-deed dated 22.09.1982 to one Bhaiyalal

Soni. Likewise, the defendant No.4 had further sold adjoining

land out of Khasra No.65 area 1250 sq. ft. by registered sale

deed dated 05.08.1983 to Bhaiyalal Soni. The aforesaid lands

purchased by Bhaiyalal Soni were recorded in revenue

records. In both the registered sale-deeds, it is specifically

mentioned that 5 ft. road on the northern side has been

given by the defendant No.4 out of is own land as ''approach

road''.

Bhaiyalal Soni vide sale-deed dated 05.02.1991 has sold

the land admeasuring 1250 sq.ft. to the plaintiff. In both the

aforesaid sale-deeds 5 ft. road on the northern side is

specifically mentioned. The other 3000 sq.ft of the land which

was purchased by Bhaiyalal Soni was sold to Smt. Kanya Singh

by registered sale-deed dated 22.04.1991. Defendants No.1

and 2 after purchase of aforesaid land started raising

construction over the road and also on the land which the

plaintiff purchased vide registered sale-deed dated

05.02.1991. Likewise, the defendant No.3 also started raising

construction over the said land, which was part of land

belonging to the plaintiff. The plaintiff has filed the present

civil suit for declaration and permanent injunction. During

pendency of the said civil suit, the plaintiff has filed an

application under Order 26 Rule 9 of the Code for demarcation

of the land. The defendants No.1 to 3 have filed the reply to

the said application and the defendants No.1 and 2 has also

filed an application under Order 26 Rule 9 of the Code for

demarcation, which they have purchased by a registered sale-

deed dated 13.10.2005. The trial Court vide order dated

08.08.2016 dismissed both the applications filed by the

petitioner as well as by the defendants No.1 and 2 on the

ground that the plaintiff cannot be permitted to collect the

evidence under Order 26 Rule 9 of the Code. Being aggrieved

by that order, the petitioner has filed the present petition.

Learned counsel for the petitioner submits that the trial

Court has erred in rejecting the application submitted by the

petitioner under Order 26 Rule 9 of the Code. It is submitted

that both petitioner as well as the defendants No.1 and 2

have filed an application under Order 26 Rule 9 of the Code.

Thus, both agrees that there is serious dispute of boundaries

between the parties, therefore, in such circumstances, the

trial Court should have allowed the application preferred by

the petitioner under Order 26 Rule 9 of the Code. It is

submitted that the boundaries dispute between the parties

can be resolved by spot inspection i.e. by appointment of the

Commissioner. It is further argued that the trial Court has

erred in rejecting the application on the ground that the

application has been filed by the parties for collecting the

evidence. In support of his submission, learned counsel for

the petitioner has relied on the decision in the case Durga

Prasad Vs. Parveen Foujdar and others , 1975 JL J 440

and Haryana Waqf Board Vs. Shanti Sarup and Others ,

(2008) 8 SCC 671.

On the other hand, learned counsel for the respondents

supports the order passed by the trial Court. It is submitted

that the application for temporary injunction is pending before

the trial Court and in reply to the said application, the

respondents No.1 and 2 have filed a map which clearly

demonstrate the situation of spot. Therefore, appointment of

the Commissioner is not necessary in the present case. It is

further submitted that the respondents No.1 and 2 have also

filed an application under Order 26 Rule 9 of the Code and

the said application is also rejected by the trial Court. It is

submitted that the trial Court vide order dated 08.08.2016

holds that there is a dispute between the parties with regard

to possession of the suit property and as per pleading

inspection was sought with regard to possession and

construction by the parties over their respective land and

thus, both the parties have prove their case and no

commission can be issued to collect the evidence for

aforesaid parties and therefore, the trial Court has rightly the

dismissed the application preferred by the petitioner.

Heard learned counsel for the parties and perused the

record as well as the order passed the trial Court. From

perusal of the pleadings made in the plaint, it appears that

there is a serious dispute regarding boundaries of the

disputed land. The petitioner therefore filed an application

under Order 26 Rule 9 of the Code for appointment of the

Commission. However, the trial Court has dismissed the said

application of the ground that the same has been filed to

collect the evidence. Division Bench of this Court in the case

of Durga Prasad (supra) in paragraph-25 has held as under

"25. Point No.2 : 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."

Similarly the Apex Court in the case of Haryana Waqf

Board (supra) has held that when there is a controversy

between the parties regarding demarcation of the suit land

because the land of the respondent was adjacent to the suit

land and therefore, the Court should have allowed the

application for appointment of the Commissioner for

demarcation of the suit land.

Thus, in the light of aforesaid judgment when there is a

dispute regarding demarcation of the land then appointment

of local Commissioner for demarcation of suit land is

necessary and also it is to be noted that in the present case,

the respondent has also filed a similar application for making

the same prayer for appointment of the Commissioner.

In view of aforesaid, the present writ petition is allowed.

The impugned order dated 08.08.2016 passed by the trial

Court is hereby set aside. The trial Court is further directed

to appoint local Commissioner for demarcation of the suit

land. The expenses of the Commissioner will be borne by both

the parties.