Madhya Pradesh High Court
Mahesh Kumar Mundra vs The State Of Madhya Pradesh on 5 April, 2022
Author: Vishal Mishra
Bench: Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 5 th OF APRIL, 2022
MISC. PETITION No. 1455 of 2022
BETWEEN:-
MAHESH KUMAR MUNDRA S/O LATE BABULAL JI
MUNDRA, AGED ABOUT 52 YEARS, OCCUPATION:
BUSINESS R/O NAZAR GANJ AASHTHA, TAHSIL
AASHTHA, DISTRICT SEHORE (M.P.) (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI AVINASH ZARGAR - ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH THROUGH
COLLECTOR TEH. AASHTHA DISTRICT SEHORE
(M.P.) (MADHYA PRADESH)
2. TEHSILDAR TAHSIL AASTHA DISTRICT SEHORE
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PIYUSH JAIN - GOVERNMENT ADVOCATE )
This petition coming on for admission this day, th e court passed the
following:
ORDER
The present petition has been filed under Article 227 of the Constitution of India challenging the order dated 26.02.2022 passed by the IInd Civil Judge, Aashtha Distrist Sehore rejecting an application filed under Order 39 Rule 7 of C.P.C. for appointment of Commissioner for conducting sport inspection of Signature Not Verified his land. The present petition has been filed.
SAN Digitally signed by PRARTHANA SURYAVANSHIDate: 2022.12.12 18:34:46 IST It is a case of the petitioner that he is the owner of the property of the 2 land bearing Khasra No.118/1/1 admeasuring 0.28 acres situated at Gram Ghanshyampura, Tehsil Aashtha District Sehore. He purchased the land though registered sale deed dated 28.03.2008 executed in favour by one Nandkishore. After obtaining permission from the Nagar Palika, he has constructed a house on disputed land.
On 21.12.2021, behind the back of petitioner, the halka Patwari, prepared a report stating that the petitioner has encroached of the land therefore the proceedings under Section 248 of MPLRC were initiated and show cause notice was issued to the petitioner. Reply to the show cause notice was filed by the petitioner pointing out that the report was prepared behind the back of the petitioner without carrying out any demarcation of the disputed land. Revenue case No.0025/A-68/2021-22 was instituted without following the due process of law. The date for final arguments has been fixed after taking the evidence of Patwari. He filed an application under Section 32 of MPLRC raising objection but without the following due process of law vide order date 13.01.2022, the case was finally disposed of declaring the petitioner to be an encoracher upon the land in dispute. Appeal preferred the same before the Sub- Divisional Officer, Aastha on 15.01.2022. The petitioner also gave a notice under Section 80 of CPC to respondent No.2 but of no consequence. Therefore he preferred civil suit for declaration of title and permanent injunction along with an application under Order 39 Rule 7 of C.P.C. was also filed which was rejected by learned trial Court.
It is his case that the application has been filed not for collecting the evidence rather to know the actual possession of the property in question Signature Not Verified SAN because it is a specific stand of the petitioner that map has been prepared Digitally signed by PRARTHANA SURYAVANSHI incorrectly and the boundaries are shown are also not correct. He has placed Date: 2022.12.12 18:34:46 IST 3 reliance upon the judgment passed in the case of Jayalakshmi Constructions, Hyderabad Vs. Nawab Behboob Ali Khan reported in 2005 SC (AP) 1111. It is argued that the appointment of Commissioner in terms of Order 39 Rule 1 and 7 is not for the purpose of collecting an evidence. It is only for obtaining the full information with respect to property in question. Therefore, it cannot be said to be for collection of evidence. The learned trial Court has failed to observe the aforesaid provisions and has rejected the application illegally.
Per contra, counsel appearing for the State has vehemently opposed the contentions and supported the impugned order and has argued that the application under Order 39 Rule 7 of C.P.C cannot be considered for collection of evidence. The report of Patwari has specific and is against the petitioner pointing out him to be an encroacher under Section 248 proceedings and the petitioner has also being declared as an encroacher. Under these circumstances, suit for declaration of title and permanent injunction is already filed pending consideration. The application under Order 39 Rule 1 and 2 of CPC is also pending before the trial Court. Therefore, prior to decision on these applications considering the application for under Order 39 Rule 7 of C.P.C will amounts to collection of evidence. The order impugned is rightly been passed by the learned trial Court and the same does not call for any interference. He has prayed for dismissal of the same.
Heard the learned counsel for parties and perused the record. From the perusal of the record, it is not disputed that the petitioner has been declared as an encroacher and proceedings under Section 248 of MPLRC Signature Not Verified SAN were initiated against him. In which after conclusion he has been further Digitally signed by PRARTHANA declared as an encroacher in the matter. The petitioner participated in the SURYAVANSHI Date: 2022.12.12 18:34:46 IST 4 proceedings of under Section 248 of MPLRC thereafter he has preferred a civil suit for declaration and permanent injunction along with application under Order 39 Rule 1 and 2 of CPC which is pending consideration. During the pendency of this appeal he has filed the application under Order 39 of Rule 7 of CPC seeking appointment for Commissioner for spot inspection. Once the petitioner has lost his petal under 248 of MPLRC against which an appeal has been filed and during the pendency of the civil suit and pending application under Order 39 Rule 1 and 2 of CPC filing of application seeking appointment of Commissioner will amounts to collecting an evidence. The petitioner is required to prove his case. As the application under Order 39 Rule 1 and 2 of CPC is already filed in pending the petitioner may pursue the application for redressal of his grievance as the petitioner failed to prove that he is the owner of the property and has possession of the property therefore the proceedings under 248 of MPLRC were decided against him.In such circumstances, asking for appointment of Commissioner and spot inspection will amounts to collection of evidence.
The case law relied upon by the petitioner is virtually on different footings and different facts and circumstances even otherwise in the case law which has been relied, it is held that the appointment of Commissioner is not permissible neither under Order 29 Rule 9 of CPC or Order 39 Rule 7 of CPC for collection of evidence.
This petition under Article 227 of the Constitution of India wherein, this court is exercising supervisory jurisdiction and is required to seek the correctness of the order to the extent that what procedure, the trial court has Signature Not Verified SAN adopted while deciding the application. The law with respect to supervisory Digitally signed by PRARTHANA SURYAVANSHI jurisdiction Article 227 of the Constitution of India is made clear by the Hon'ble Date: 2022.12.12 18:34:46 IST 5 Supreme Court in the case of Shalini Shyam Shetty Vs. Rajendra Shhankar Patil reported i n (2010) 8 S C C 329, wherein certain guidelines have been issued by the Supreme Court, which are as under :-
"The scope of interference under Article 227 of the Constitution is limited. If order is shown to be passed by a Court having no jurisdiction, it suffers from manifest procedural impropriety or perversity, interference can be made. Interference is made to ensure that Courts below act within the bounds of their authority. Another view is possible, is not a ground for interference. Interference can be made sparingly for the said purpose and not for correcting error of facts and law in a routine manner." I n such circumstances and considering the judgments passed by the Hon'ble Supreme Court in the aforesaid cases, no relief can be extended to the petitioner. The order impugned is just and proper and does not call for any interference in the present writ petition.
Petition sans merits and is hereby rejected.
(VISHAL MISHRA) JUDGE Prar Signature Not Verified SAN Digitally signed by PRARTHANA SURYAVANSHI Date: 2022.12.12 18:34:46 IST