Madhya Pradesh High Court
Ajgar Singh vs Pradhanmantri Gramin Sadak Yojna Unit ... on 22 October, 2020
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
THE HIGH COURT OF MADHYA PRADESH
M.P. No. 5271 of 2019
AJGAR SINGH & ORS. VS. MANAGER PRADHANMANTRI SADAK
YOJNA
Gwalior, Dated : 22/10/2020
Shri Prashant Sharma, Counsel for the Petitioners.
Shri Vivek Khedkar, Counsel for the respondent No.1.
Shri Abhishek Singh Bhadauriya, Counsel for the State/respondent No.2.
None for the other respondents.
This miscellaneous petition under Article 227 of the Constitution of India has been filed against the order dated 24/09/2019 passed by Third Additional District Judge, District Bhind in Civil Appeal No.37/2019 thereby affirming the order dated 25/04/2019 passed by Second Civil Judge, Class No.1, Lahar, District Bhind in RCS No.A/509/2018 thereby rejecting the application filed by the petitioner under Order 39 Rule 1 & 2 C.P.C.
The necessary facts for disposal of the present petition in short are that the petitioners have filed a suit for declaration of title and permanent injunction on the ground that he is the owner of agricultural land bearing Survey No.108 area 3.34 hectares, survey no. 220 area 2.34 hectares and survey No.128 area 1.42 hectares situated in village Pratappura, Tehsil Ron, District Bhind. It is the case of the petitioners that the defendant Nos. 1 and 2 are constructing a road under Pradhanmantri Gramin Sadak Yojna and the defendant No. 3 is the contractor and the defendant No.4 is carrying out the actual construction work.
It is the case of the petitioners that the defendants are trying to construct road on survey No.108. When the defendants No.3 and 4 were caring out measurement work for the purposes of construction of road then it was objected by the petitioners, however, the defendants are out and out trying to raise construction over his land and accordingly, this suit was filed for declaration of title and permanent injunction.
The petitioners also filed an application under Order 39 Rule 1 & 2 C.P.C. for grant of temporary relief.
The defendants No.1 and 2 filed their reply and pleaded that the petitioners are not the sole Bhumiswami of the land in dispute and there are other co-sharers also but all the co-sharers have not filed the suit therefore, the suit by the petitioners is not maintainable. Further the defendant No.3 is caring out the construction work of road under the Pradhanmantri Gram Sadak Yojna and the road is not being constructed on survey No.108. Since, no construction on the land belonging to the petitioners is under proposal, therefore, there is no question of acquisition of the land in question. For the purposes of construction of road, it is within the discretion of the contractor as to where he would like to dump the raw material and in case if the injunction is granted then it would hamper the public cause.
The defendant No.3 filed his reply and submitted that the petitioners have filed a demarcation report, which is two years old and the said demarcation is in relation to Survey No.108 and 192/2 where as the suit has been filed in respect of survey No.108 only and survey No.192/2 is not the subject matter of suit. The petitioners have not clarified that on which part of survey No.108, the defendant No.3 is trying to raise a construction. It was further pleaded that the defendant No.3 has not carried out any measurement work of the land, which is in possession of the petitioners for the purposes of construction of road. The road is being constructed on a pre-existing public road which was being used by the villagers for the last several years. The construction is being carried out as per the sanctioned layout. It was further pleaded that except the disputed area of 500 mt., the construction of the remaining road is over and in case if the temporary injunction is granted then it would cause irreperable lose to the general public.
The Trial Court by order dated 25/04/2019 rejected the application on the ground that although the petitioners have filed certain documents in support their claim but the defendants have not filed any documents. The Trial Court also came to a conclusion that the petitioners are the owner of Survey No.108. However, the photograph filed by the petitioners with respect to the attempt to raise the construction was discarded by the Trial Court on the ground that it is not supported by a certificate issued under Section 65(B) of Evidence Act.
Similarly other photocopies of the public documents like measurement book, Panchnama, Field Book etc. were not considered. The Trial Court has also considered the report submitted by the Patwari, which was to the effect that the land survey No.108 is a private land belonging to the petitioners and there is not public way on the said land. However, discarded this report only on the ground that it is not clear from this report that whether any construction of road is being carried out on the land belonging to the petitioners or not ? It appears that the Trial Court got swayed away by the fact that the road is being constructed for general public. Accordingly, it was held that there is not prima facie case as well as no balance of convenience in favour of the petitioners and they would not suffer any irreperable loss.
Being aggrieved by the order passed by the Court below the petitioners filed an appeal, which too has been dismissed by the Appellate Court by the impugned order.
Challenging the orders passed by the Courts below, it is submitted by the counsel for the petitioners that it is clear from the order of the Trial Court that the defendants did not file any document(s) in support of their claim. The road cannot be constructed without caring out any measurement and, therefore, the defendants were in possession of the measurement book and since they deliberately did not file before the Trial Court therefore, adverse inference should have been drawn against the defendants. It is further submitted that it is a case of dispute of boundaries and, therefore, it can be resolved by appointment of Commissioner under Order 26 Rule 9 of C.P.C..
Per contra, the counsel for the respondent No.1/defendant No.1 submitted that both the Courts below have given a well reasoned order thereby rejecting the application filed by the petitioners under Order 39 Rule 1 & 2 of C.P.C., therefore, the said orders do not want any interference. However, it is submitted that because of interim order granted by this Court, the construction of the road has come to a halt. However, the counsel for the respondent No.1 could not give any explanation as to why the documents pertaining to the construction of the road, which are in possession of the defendants were not placed before the Trial Court.
Heard the learned counsel for the parties.
One thing is clear that any of the defendants did not file any document to show that the construction of the road is being carried out as per sanctioned layout. Thus, the Courts below should have drawn an adverse inference against the defendants, because it is well established principle of law, that if a party, who is in possession of best evidence, fails to produce the same, then an adverse inference can be drawn.
Further defendants have not disputed the title of the plaintiffs on Survey No.108, therefore, this matter can be resolved by appointing a Commissioner.
Admittedly, none of the parties moved an application for appointment of Commissioner prior to adjudication of the application under Order 39 Rule 1 & 2 of C.P.C. But instead of non suiting the petitioners only on this ground, this Court is of the considered opinion that the interest of justice demands that the petitioners can be granted one more opportunity to move necessary application for appointment of the Commissioner. My view is fortified by judgment passed by this Court in the case of Jaswant Vs. Deen Dayal reported in 2011 (2) MPLJ 576, in which it has been held as under:-
10..... Indeed, it was the duty of the Court itself to isue commission by appointing an employee of Reveue Department not below the rank of RevenueInspector to get the land in dispute demarcated and for its identification no application is required for that purpose.......
Accordingly, the order dated 24/09/2019 passed by Third Additional District Judge, District Bhind in Civil Appeal No.37/2019 and order dated 25/04/2019 passed by Second Civil Judge, Class No.1, Lahar, District Bhind in RCS No.A/509/2018 are hereby set aside. The petitioners are granted liberty to move an application under Order 26 Rule 9 C.P.C. for appointment of Commissioner for the purposes of demarcation of Survey No.108. After the receipt of the Commissioner report the Trial Court shall decide the application filed by the petitioners under Order 39 Rule 1 & 2 of C.P.C. afresh. If it is found that the defendants are intending to raise construction over the land belonging to the petitioners, then they shall be at liberty to acquire the land under the provisions of t he Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 . Till the application under Order 39 Rule 1 and 2 CPC is decided by the Trial Court, the interim protection granted by this Court shall remain in force.
With the aforesaid observations, this petition is finally disposed of.
(G.S. Ahluwalia)
PRINCEE Judge
BARAIYA
2020.10.23
12:15:31 -07'00'