Madhya Pradesh High Court
Shailendra vs Rakesh on 27 August, 2018
1
HIGH COURT OF MADHYA PRADESH BENCH AT INDORE
(S.B.: HON. SHRI JUSTICE PRAKASH SHRIVASTAVA)
SA No. 641/2012
Shailendra
Appellant
Vs.
Rakesh
Respondent
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Shri V.K. Jain learned senior counsel with Shri Vaibhav
Jain learned counsel for the appellant.
Shri R.R. Bhatnagar learned counsel for the respondent.
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Whether approved for reporting :
ORDER
(Passed on 27/8/2018) By this second appeal under section 100 of CPC appellant has challenged the judgment of the two courts below. Trial court by judgment dated 21st February 2011 had dismissed the CS No. 19A/2009 filed by appellant and the first appellate court by the judgment dated 18/9/12 by dismissing the appeal has affirmed the judgment of the trial court. 2/ The appellant had filed the suit for possession and permanent injunction with the plea that he was owner in possession of house no. 141 Roopram Nagar Indore situated in survey no. 1418 and registered lease deed is in his favour for an area of 122 ft X 6 inches towards north; 50 ft towards west;
2and 95 feet towards south. Hence the plot was triangular and that the respondent had encroached upon an area of 6X 5ft on the appellant's land by putting gumti on it. 3/ The respondent by filing the written statement had denied the plaint averments and had taken the plea that gumti is in khasra No. 1418/1 which was purchased by Sohanlal father of respondent vide sale agreement dated 5/7/1990 from Laxman Singh.
4/ Trial court had dismissed the suit on reaching to the conclusion that appellant could not establish that respondent has encroached upon the suit land and first appellate court has affirmed the finding of the trial court.
5/ This court vide order dated 12/12/2013 had initially formulated following substantial questions of law:
1. Whether the findings recorded by the learned courts below are sustainable in law as they are contrary to the pleadings and evidence on record?
2. Whether the learned courts below are right in disbelieving the case of the appellant because the appellant has not produced any measurement report?
6/ On 19/7/2018 following third substantial question of law was formulated by this court:
3. Whether the courts below have committed an error of law in dismissing the suit without exercising the power under Order 26 Rule 9 of the CPC and without calling for a demarcation report by appointing a Commissioner?
7/ Having regard to the circumstances of the case the third substantial question of law is examined initially because if this question of law is answered in favour of appellant then other 3 two questions may not be required to be decided. 8/ Having heard the learned counsel for the parties and on perusal of the record it is noticed that appellant is claiming that respondent has encroached upon the land of appellant whereas the respondent has denied the same. Both the parties have led the evidence in support of their respective plea. The court below has noted the contradictory oral evidence of the parties in respect of encroachment. It has been noted that on the one hand appellant had adduced evidence that respondent had encroached upon the suit land and on the other hand the respondent has denied any encroachment. The admission of respondent that he had no idea about the measurement of the plot of appellant and that the appellant has constructed multi storied house No. 141, measurement of which has not been taken, has been noted by first appellate court. It has been found proved that appellant had taken khasra no. 1418 on lease from Suresh. The map Ex.P-2 showing encroachment has been disbelieved by the court below on the ground that it was not a demarcation report. The suit of the appellant has been dismissed on the ground that he had not produced any demarcation report showing the encroachment. 9/ The aforesaid facts clearly reveal that there was boundary dispute relating to encroachment by respondent and for resolving such a dispute it was incumbent upon the courts below to appoint a commissioner Under Order 26 Rule 9 CPC. 10/ This court in the matter of Smt. Vimla Devi and 5 others Vs. Smt. Shanti Bai & 5 others reported in 1999(II) MPJR SN 43 in this regard has held as under:
Counsel for the appellants submitted that dispute in 4 the suit is that the defendant has made encroachment. This has been denied by the defendant. There is no agreed map and as such the matter cannot be determined effectively unless competent revenue officer is appointed as Commissioner to demarcate and measure the spot.
It is pertinent to note that the court has discretion to issue a commission, it is not an arbitrary but judicial discretion to be exercised according to well established principles. The appointment of a commissioner to take measurement is the invariable rule when there is a dispute as to boundary or a dispute as to identify of land or a dispute as to encroachment. The object of local investigation in such cases is not so much as to collect evidence which can be taken in court, but to obtain evidence which from its very nature can only be had on the spot. The question as to whether there has been encroachment or not, cannot be conclusively proved by oral evidence alone, without such measurement. Reliance has been placed on a decision of this court reported in 1974 MPLJ Note 65 (Smt. Uttami Bahi Vs. Chhaganlal). Further reliance is also placed in Division Bench of this court in 1975 MPLJ 801 (Durga Prasad Vs. Parveen Foujdar).
Counsel for the appellants submitted that the appointment of the commissioner can be made at any stage of the proceedings.
Having heard the learned counsel for the parties and after perusal of the record, in the opinion of this court, it is just and proper that a direction is given to the lower appellate court to appoint a revenue officer as commissioner for taking measurement of the land on both sides. It is mad clear that the notice shall be given to the parties. Counsel shall also co-operate in the mater. The commissioner shall visit the spot and demarcate. A report shall be submitted before the lower appellate court by the commissioner. After the report is filed, the lower appellate court shall give opportunity of hearing to the parties and shall decide the case in accordance with law, as expeditiously as possible on its own merit.
11/ Similarly in the matter of Jaswant Vs. Deen Dayal 5 reported in (2011) 3 MPHT 422 this court has taken the view that in a case of border dispute about the land between the parties, it is the duty of the court itself to issue a commission to get the land demarcated. In this regard it has been held:
10. Regarding substantial question of law:
The moot question to be decided in this appeal is whether the property in question is of plaintiff or defendant. Both the parties are claiming ownership right on it. According to the plaintiff he purchased the land vide registered sale deed (Exh. P-2) from Deen Dayal and the suit property is a piece of that land but according to the defendant it is part of the property which he purchased from Sudhir Shrivastava vide registered sale deed (Exh. D-3). According to me, when there is dispute about demarcation of the property in question and its identity and both the parties are claiming it to be of their own on the basis of their document of title it was incumbent upon the Court itself to issue a commission by appointing an employee of revenue department not below the rank of Revenue Inspector to get it demarcated so that it can be identified. In the instant case my attention has been drawn by learned Counsel for defendants to the application filed under Order XXVI Rule 9, CPC but the same has been rejected at the time of the consideration of temporary injunction application. To me learned Trial Court erred in substantial error of law in rejecting the said application. The learned First Appellate Court has also committed the same error by not allowing the said application. Indeed, it was the duty of the Court itself to issue commission by appointing an employee of Revenue Department not below the rank of Revenue Inspector to get the land in dispute demarcated and for its identification no application is required for that purpose. In this context, I may profitably place reliance on two decisions of Supreme Court Shreepat Vs. Rajendra Prasad and others, (2000) 6 Supreme 389 and Haryana Wakf Board Vs. Shanti Sharup and others, (2008) 8 SCC 671 = 2008(4) M.P.H.T. 306 (SC), and the Division Bench of this Court in Durga Prasad Vs. Praveen 6 Foujdar and others, 1975 JLJ 440.
11. The substantial question of law is thus answered in favour of the plaintiff and it is hereby held that learned First Appellate Court has erred in substantial error of law in decreeing the suit of plaintiff without issuing commission to get the property demarcated, so that it may be identified.
12/ Having regard to the aforesaid, I am of the opinion that the courts below have committed an error of law in dismissing the suit of appellant without appointing commissioner under Order 26 Rule 9 CPC and without obtaining the demarcation report.
13/ Hence the judgment of the first appellate court is set aside and matter is remanded back to the first appellate court to appoint an employee of revenue department not below the rank of revenue inspector as Commissioner, for demarcation of the land and decide the appeal afresh after obtaining the demarcation report in accordance with law.
Having regard to the aforesaid, the substantial questions of law 1 & 2 require no consideration. The appeal is allowed to the extent indicated above.
C.C. As per rules.
(Prakash Shrivastava) Judge BDJ Bhuneshwar Datt 2018.08.28 14:52:58 -07'00'