Madhya Pradesh High Court
Mr. Anshul Agrawal vs Naughty Foods Private Limited Through ... on 27 August, 2024
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
NEUTRAL CITATION NO. 2024:MPHC-IND:24647
1 MP-2810-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 27 th OF AUGUST, 2024
MISC. PETITION No. 2810 of 2024
MR. ANSHUL AGRAWAL
Versus
NAUGHTY FOODS PRIVATE LIMITED THROUGH ITS DIRECTOR MR.
SANJAY AGRAWAL AND OTHERS
Appearance:
Shri Abhinav Malhotra, learned counsel for the Petitioner.
Ms. Kirti Dubey, learned counsel for the Respondent [R-1].
Shri Rajwardhan Gawde, learned Govt. Advocate for respondents/State.
ORDER
The present miscellaneous petition has been preferred by the petitioner being aggrieved by the impugned order dated 30.04.2024 passed by Ld. V Civil Judge Class-I, Indore, Madhya Pradesh in RCSA 692/2022, whereby the Trial Court has allowed the application preferred by the respondent No. 1 under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 read with Section 151 of Cr.P.C. and appointed concerned Revenue Officer as commissioner for demarcation and spot inspection of lands bearing Survey No.59/1 and 60/1/2 situated at village -- Bardari, Tehsil - Sanwer, District -- Indore (M.P) on 20.05.2024.
2. The petitioner has preferred a suit for declaration of title, perpetual injunction and cancellation under Order VII Rule 1 of the Code of Civil Procedure, 1908 with respect to the property situated at land bearing Survey No.59/1 (Part) ad-measuring 348 hectares / 37458 sq. ft. situated at Village-Bardari, Tehsil Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 8/28/2024 6:02:15 PM NEUTRAL CITATION NO. 2024:MPHC-IND:24647 2 MP-2810-2024 Sanwer, Dist. Indore. The respondent No. 1 is a company registered under the Companies Act, 1956 acting through its Director -- Mr. Sanjay Agrawal. The respondent No. 1 is also the alleged owner of adjacent lands bearing Survey No. 57/1/1, 60/1/2, 60/1/3, 60/2/1/2/1 and 60/2/2 situated at village -- Bardari, Tehsil Sanwer, District -- Indore (M.P). The purported demarcation proceedings under the provisions of Madhya Pradesh Land Revenue Code, 1959 appears to have been initiated on the application of Respondent No. 1. The subject property formed part of the larger area of Survey No. 59/1 admeasuring 738 Hectares/79438 Sq. Ft situated at Village Bardari, Tehsil -- Sanwer, District -- Indore.
3. The respondent No.1 preferred an application under Order 26 Rule 9 r/w Section 151 of the Code for issuance of commission for physical verification and inspection of the land bearing Survey No.59/1 and 60/1/2 situated at village -
Bardari, Tehsil Sanwer, Dist. Indore. The petitioner filed reply to the said application and submitted that the respondent has filed an application for demarcation under Section 129 of MP Land Revenue Code and order of demarcation was passed and in compliance to the said order, a notice was issued to the petitioner also being adjoining land owner. A panchnama was executed and on the basis of the said panchnama, R.I. has submitted a report in mentioning that the Manager of the present petitioner has refused to sign the panchnama. Being aggrieved by the said order, the petitioner filed objection under Section 129(5) of the MP Land Revenue Code before the SDO. The SDO vide order dated 06.03.2023 in case No.35/B-121/2022-2023 quashed the earlier demarcation proceeding and directed the Tehsildar to initiate fresh demarcation by instituting a team of revenue officers and after giving notice to all persons interested in concerned land. It is not in dispute that after the order passed by the SDO, the demarcation is still pending. The said point was specifically raised in the reply to Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 8/28/2024 6:02:15 PM NEUTRAL CITATION NO. 2024:MPHC-IND:24647 3 MP-2810-2024 the application filed by the respondent for appointment of the commissioner. He has drawn the attention of this Court to para-10 of the reply, but the same has not been considered by the trial Court.
4. Counsel for the respondent supports the impugned order of appointment of commissioner and submits that the subject matter of land of the plaint and demarcation application are different and, therefore, the commissioner was rightly appointed.
5. Counsel for the petitioner assailed the impugned order mainly on the ground that once a demarcation was done on an application filed by the respondent before the Tehsildar and the demarcation was carried out which has been set aside by the SDO under Section 129 of M.P. Land Revenue Code and directed for fresh demarcation, the trial Court ought to have not passed the order of appointment of commissioner. It is further urged that the aforesaid objection regarding setting aside the order of demarcation by the SDO and directing for fresh demarcation have not been considered. He referred the earlier demarcation report which was already set aside. He further argued that the law is well settled that the commissioner cannot be appointed in order to collect the evidence as it is well settled legal position that the Commissioner cannot be appointed for collecting evidence empowering him to visit and inspect the suit filed and to submit the report regarding actual position of the suit filed. He referred the judgment passed by this Court in the case of Ashutosh Dubey & Anr. vs. Tilak Grih Nirman Sahkari Samiti Maryadit, Bhopal & Anr., 2004(2) M.P.H.T. 14 followed in Ashok Kumar Patel & Ors. vs. Ram Niranjan Dubey & Ors., 2007(3) M.P.H.T. 419.
6. Without adverting to the aforesaid submissions, this Court finds that while considering the application filed by the respondent for demarcation in respect of khasra No.60/2/2, the notices were issued to the adjacent Bhumiswamis Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 8/28/2024 6:02:15 PM NEUTRAL CITATION NO. 2024:MPHC-IND:24647 4 MP-2810-2024 including the present petitioner and the subject matter of the present suit is adjoining to the said land. The aforesaid demarcation proceedings were set aside by the SDO and the Tehsildar was directed to make a fresh demarcation after giving notices to all the concern. The aforesaid objection raised by the petitioner in para-10 of the reply has not been considered by the trial Court in the impugned order. He referred the earlier demarcation which has already been set aside.
7. In view of the aforesaid, the impugned order is set aside and the trial Court is directed to redecide the application for appointment of commissioner in accordance with the law after considering the objections raised by the petitioner in the reply.
8. With the aforesaid, the writ petition is partly allowed and disposed off.
(VIJAY KUMAR SHUKLA) JUDGE soumya Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 8/28/2024 6:02:15 PM