Madhya Pradesh High Court
Gangabai vs Pandu on 7 November, 2017
1
WP No.4229/2017
07.11. 2017
Shri Aniket Naik, learned counsel for petitioner.
Shri Kamlesh Mandoi, learned counsel for respondent
No.1 and 2.
Heard finally with consent.
By this writ petition, the defendant No.1 in the suit has approached this court challenging the order of the trial court dated 11/5/2017 allowing the application of the respondents plaintiffs u/O.26 Rule 9 of the CPC.
Learned counsel for petitioner submits that the application was filed for collecting the evidence in respect of possession and that u/S.257(g) of the MPLR Code, the exclusive jurisdiction in respect of demarcation lies with the revenue authority.
As against this, learned counsel for respondents has supported the impugned order.
Having heard the learned counsel for parties and on perusal of the record, it is noticed that the respondent plaintiff has filed the suit for possession and he had filed the application for appointment of Commissioner u/O.26 Rule 9 of the CPC with the plea that pending the suit the petitioner had encroached upon further area and the said application has been allowed by the trial court to ascertain the extent of encroachment after the demarcation by appointing the Commissioner. The impugned order is a well reasoned order and the order reflects that the Commissioner has not been appointed for collecting the evidence about possession, but to ascertain the extent of additional encroachment.
2So far as the issue relating to the bar u/S.257(g) of the MPLR Code is concerned, no such argument was advanced by counsel for petitioner before the trial court. Even otherwise it is only an application for appointment of commission u/O.26 Rule 9 of CPC.
Counsel for petitioner has placed reliance upon the single bench judgment of this court in the matter of Ashutosh Dubey and another Vs. Tilak Grih Nirman Sahakari Samiti Maryadit, Bhopal and another 2004(2) MPHT 14, but in that case the Commission was issued by the trial court for investigating the fact that who was in possession of the disputed property, but that is not so in the present case. He has also placed reliance upon the single bench judgment of this court in the matter of Seva Ram Vs. Sugan Bai and others 2009 RN 192 but in that case in the second appeal the issue of jurisdiction on the basis of Sec.257(g) of the MPLR Code was raised and that was not a case relating to issuance of Commission.
Learned counsel for respondent has rightly relied upon a division bench judgment of this court in the matter of Durga Prasad Vs. Parvgeen Foujdar and others 1975 MPLJ 801 wherein it has been held that for the determination of encroachment, Commissioner can be appointed. In the matter of Jaswant Vs. Deen Dayal 2011(3) MPHT 422 this court has held that in case of border dispute about land between the parties it is the duty of the court to issue a commission to get the land demarcated.
Having regard to the aforesaid, I am of the opinion 3 that no patent illegality has been committed by the trial court in passing the impugned order.
Even otherwise, the Supreme Court in the matter of Jai Singh and others Vs. Municipal Corporation of Delhi and Another reported in 2010(9) SCC 385 while considering the scope of interference under Article 227 of the Constitution, has held that the jurisdiction under Article 227 cannot be exercised to correct all errors of judgment of a court, or tribunal acting within the limits of its jurisdiction. Correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.
In view of the above, I do not find any ground to interfere in the impugned order. The writ petition is accordingly dismissed.
(PRAKASH SHRIVASTAVA) Judge Varghese Digitally signed by Varghese Mathew DN: c=IN, o=High Court of Madhya Pradesh, ou=Administration, postalCode=452001, st=Madhya Pradesh, Mathew 2.5.4.20=b06e85e8115fd7cc0bb34a088 8d1d430f979382d4c898692d55d8dbb4 d9b937e, cn=Varghese Mathew Date: 2017.11.10 12:33:33 +05'30'