Madhya Pradesh High Court
Lakhanlal Shrivastava vs Smt. Laxmi Gupta on 11 April, 2018
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
AT JABALPUR
M.P. No.338/2017
Lakhanlal Shrivastava.
Vs.
Smt. Laxmi Gupta
Present : Hon'ble Ms. Vandana Kasrekar, J.
Mr. Shailendra Verma, learned counsel for the
petitioner.
Mr. R.P. Agrawal, learned Senior Advocate with Mr.
S.M. Lal, Advocate for the respondent.
O R D E R
(11.04.2018) The petitioner has filed the present petition under Article 227 of the Constitution of India challenging the order dated 25.09.2017 passed by C.S. No.1-A/2015, thereby the trial Court has rejected the application preferred by the petitioner under Order 26 Rule 9 and 10 read with Section 151 of the Code of Civil Procedure.
2. The petitioner/plaintiff has filed a civil suit for declaration as well as permanent injunction. During pendency of the said civil suit, the respondent has 2 M . P . No . 3 3 8 / 2 0 1 7 forcibly dispossessed the plaintiff. The plaintiff amended the plaint and also sought the relief for recovery of possession. The respondent herein denied the plaint averments and stated that the plaintiff was never owner of the suit land and also denied that one Jagrani was owner of the suit land at any time. As per Najri Naksha and sale-deed of the defendant, the chouhaddi was not matching/tallied. The petitioner therefore, filed an application under Order 26 Rule 9 of the Code of Civil Procedure for appointment of the Commissioner. The said application was allowed on 13.05.2016 and the Commissioner was directed to give its report on two points : (1) to prepare the map and its dimensions in respect of land situated in Mouja Nayagaon Tahsil Majgawa, District-Satna in Araji No.909/9/2, Araji No.909/10/2 and Araji No. 909/11/2, (2) in case any construction is made on the aforesaid land then report be submitted. The Commissioner did not comply with the directions issued on 13.05.2016, therefore, the Court wrote a letter on 20.01.2017 and has directed the Tahsildar to submit the reply and explanation, failing which, will be proceeded as per 3 M . P . No . 3 3 8 / 2 0 1 7 law. Inspite of that the Commissioner did not comply with the directions nor submitted the reply to the said letter. The Court below again wrote a letter on 22.04.2017 to the Commissioner and ultimately, the Commissioner on 07.07.2017 submitted his report and spot map. As the said report of the Commissioner was not in accordance with the law issued by the Court as per the order dated 13.05.2016, therefore, the petitioner has filed an application before the Court for appointment of the Commissioner as well as demarcation of the land. The Court below vide order dated 25.09.2017 has dismissed the said application. Being aggrieved by that order, the petitioner has filed the present petition.
3. Learned counsel for the petitioner submits that the trial Court has erred in rejecting the application submitted by the petitioner praying for demarcation. It is submitted that the report of the Commissioner is not in accordance with directions issued by this Court, the trial Court has dismissed the application without considering the grounds, which 4 M . P . No . 3 3 8 / 2 0 1 7 were raised by the petitioner in the application. It is submitted that in view of the order dated 13.05.2017, there is a specific direction to the Commissioner for demarcation. It is further submitted that when there is a dispute with regard to demarcation, the trial Court ought to have appointed the Commissioner.
4. On the other hand, learned Senior Advocate for the respondent supports the order passed by the trial Court. It is submitted that the trial Court has not committed any error in rejecting the application submitted by the petitioner. In support of his submissions, learned counsel for the petitioner relied on the judgment passed by the Apex Court in the case of Khimji Vidhu Vs. Premier High School , AIR 2000 SC 2495 and Bathumal Raichand Oswal Vs. Laxmibat R. Tarta and another , AIR 1975 SC 1297.
5. I have heard learned counsel for the parties, perused the record as well as the impugned order passed by the Court below. From perusal of the order passed by the trial Court, it reveals that the trial Court has passed an order for issuance of Commission and 5 M . P . No . 3 3 8 / 2 0 1 7 directed the Commissioner to give its report on two points. (1) to prepare the map and its dimensions in respect of land situated in Mouja Nayagaon Tahsil Majgawa, District-Satna in Araji No.909/9/2, Araji No.909/10/2 and Araji No. 909/11/2, (2) in case any construction is made on the aforesaid land then report be submitted. On the basis of those two grounds, the Commissioner has submitted its report. The merits of the report can be considered only after recording of the evidence. The petitioner can file an objection against the said report. The trial Court at the time of appointing the Commissioner has not given any direction for demarcation. So far as demarcation is concerned, the petitioner can submit an application before the Revenue Authorities for demarcation of the land. Thus, the trial Court not committed any error in rejecting the application submitted by the petitioner. The Apex Court in the case of Khimji Vidhu (supra), the relevant portion of paragraph No.5 reads as under :
"5. ______________________. These findings of fact could not have been 6 M . P . No . 3 3 8 / 2 0 1 7 interfered with by the High Court in exercise of its jurisdiction under Article 227 of the Constitution. Jurisdiction under Article 227 of the Constitution must be sparingly exercised and may be exercised to correct errors of jurisdiction and the like but not to upset pure findings of fact, which falls in the domain of an appellant court only. ___."
Similarly, in the case of Bathutmal (supra), the relevant portion of paragraph Nos. 6 and 7 reads as under :
"The jurisdiction of High Court under Article 227 is limited only to seeing that the subordinate court functions within the limits of its authority and does not extend to correction of mere error of fact by examining the evidence and reappreciating it. An error of fact, even though apparent on the face of 7 M . P . No . 3 3 8 / 2 0 1 7 the record, is not subject to correction by the High Court in exercise of its jurisdiction under Article 227. An error of fact can be corrected only by a superior court in exercise of its statutory power as a court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts."
(Paras 6 and 7)
6. Thus, in view of aforesaid, I do not find any jurisdictional error committed by the trial Court in passing the impugned order. Accordingly, the petition is dismissed.
(Ms.Vandana Kasrekar) Judge RC Digitally signed by RASHMI CHIKANE Date: 2018.04.13 16:14:32 +05'30' HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR M.P. No.338/2017 Lakhanlal Shrivastava.
Vs. Smt. Laxmi Gupta ORDER Post it for : 11.04.2018 (Ms. Justice Vandana Kasrekar) JUDGE 10.04.2018