Madhya Pradesh High Court
Smt.Vimla Tyagi vs Ram Niwas Sharma on 8 April, 2022
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
HIGH COURT OF MADHYA PRADESH
Writ Petition No.7830/2012 (Smt. Vimla Tyagi Vs. Ram Niwas Sharma)
Gwalior, Dated : 8.4.2022
Shri N.S. Tomar, learned counsel for the petitioner.
Shri Harish Dixit, learned counsel for the respondent.
(1) This writ petition under Article 227 of the Constitution of India is at the instance of plaintiff challenging the order dated 17/09/2012 passed by First Civil Judge, Class II, Gwalior, in Civil Suit No. 26A/2012, whereby application under Order 26 Rule 9 CPC filed by her was dismissed.
(2) In brief, the petitioner/plaintiff had instituted a civil suit seeking declaration, injunction and recovery of possession averring that in between the houses of petitioner/plaintiff and the defendant there is boundary wall 4 inch wide and 60 feet long which is disputed in the suit. The defendant had built a pillar for a staircase on the disputed wall in the year 2002, with the consent of the plaintiff, with a condition that he will remove the said construction at his own will as and when asked for. It was further averred in the plaint that the defendant for past some days had started denying the ownership of the plaintiff over the disputed wall and on 03/03/2012 had demolished 4 feet of the wall at the eastern side and had started building a wall for washroom. A complaint was lodged with the police and on 09/09/2012 she had revoked her permission granted earlier and asked the defendant to remove all the construction on the wall, but since he refused, the present suit was filed.
(3) In the written statement filed on behalf of the defendant, the contentions raised by the plaintiff were denied in toto and it was averred that he had purchased the House No.B-30 vide registered sale- deed dated 08/12/1978 and the disputed wall was in existence at that time being built by his predecessor-in-title. It was further contended that the wall was never build by the plaintiff and even it is not situated 2 HIGH COURT OF MADHYA PRADESH Writ Petition No.7830/2012 (Smt. Vimla Tyagi Vs. Ram Niwas Sharma) on the plaintiff's land rather it is situated on his land. Issues were framed by the learned Trial Court and the suit was proceeded with. (4) In the meanwhile an application under Order 26 Rule 9 CPC was filed on the ground that since the dispute is with regard to as on whose land the boundary wall is constructed, it is necessary to carry out measurement of the subject matter by appointing a local commissioner. (5) The defendant while opposing the prayer submitted that construction of the boundary wall is not in dispute nor is the dispute regarding its width or length, but the dispute is as on to whose land it is constructed and for that evidence would be required. By issuing commission the dispute could not be resolved and thus, prayed for dismissal of the same.
(6) Learned Trial Court vide order dated 17/09/2012 dismissed the application holding that the dispute could be resolved only by way of adducing evidence as the question of title is involved in the matter. (7) Aggrieved the present petition had been filed. (8) Learned counsel for the petitioner strenuously argued that the learned Trial Court had misread the provisions of Order 26 Rule 9 CPC, and had not construed it in its right perspective and thus had fell in error of law and fact. From the controversy involved in the matter it would have been expedient to appoint a commissioner and ascertain the factual dispute as to the place of construction of the boundary wall. In support of his contentions he place reliance on decision of Orissa High Court reported in AIR 1988 Ori 248, order passed in M.P. No. 4408/2018 Anurag Jaiswal Vs. Collector, Khandwa dated 10/10/2018 and in the matter of Haryana Wakf Board Vs. Shanti Sarup & others dated 16/07/2008 reported in (2008) 8 SCC 671.
(9) Per contra learned counsel for the respondent submitted that since the dispute is with regard the title of the portion of land on which 3 HIGH COURT OF MADHYA PRADESH Writ Petition No.7830/2012 (Smt. Vimla Tyagi Vs. Ram Niwas Sharma) the boundary wall is situated, only by way of evidence it could be resolved and no purpose would be served by appointing a commissioner. He relied on decision of this court passed in W.P. No.1115/2014 Ram Biloki Vs. Ramswaroop dated 10/12/2018, order passed in M.P. 3838/2021 Noor Mohammad (Dead) through Lrs. Mohd. Saif Ansari Vs. Haleem Mansoori dated 21/02/2022 and order passed in M.P. 1582/2022 Soukhilal & others Vs. Vijay Kumar & others dated 09/03/2022.
(10) Heard the learned counsel for the petitioner at length. (11) From perusal of the record, it is seen that both the plaintiff and defendant had alleged the construction of boundary wall over the land of their ownership, there is no agreed map between them rather both of them are claiming their rights over the disputed wall. The provisions of Order XXVI Rule 9 of the CPC are very clear and for the ready reference the same is reproduced below :-
"9. Commissions to make local investigations.-- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court :
Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."
(12) From the perusal of the above the principle of law which emerges is that where the dispute is of boundaries, then the same can be resolved by appointing a Commissioner, for that there should not be any claim of title over the land belonging to another party. Thus, except 4 HIGH COURT OF MADHYA PRADESH Writ Petition No.7830/2012 (Smt. Vimla Tyagi Vs. Ram Niwas Sharma) the question of identity of property, no other dispute should be involved, but where a party asserts that dispute is with regard to ownership, then it cannot be said to be a simple case of boundary dispute. In the present matter both the parties are asserting their title over the boundary wall.
(13) Further, a local Commissioner can be appointed for either elucidating any matter in dispute or for ascertaining the market value of any property or the amount of any mense profits or damages or annual net profits. However, "Elucidating any matter in dispute" would not include collection of evidence. Also the Court by passing an order under Order 26 Rule 9 CPC cannot delegate its powers of adjudicating the dispute to a local Commissioner. The scope of Order 26 Rule 9 CPC is very limited. It is settled law that the parties are required to prove their own case by way of evidence, therefore, it is the duty of plaintiff/defendant to first give evidence in support of their case. After the evidence of parties, if court deem it proper that any issue requires clarification then the Court may appoint a Commissioner. The report of Commissioner is merely a piece of evidence and not binding on the Trial Court. It can be used for the purpose of appreciating the evidence came on record.
(14) In the present case the parties are yet to lead their evidence and only after collection of evidence, if the Court comes to a conclusion that it is difficult to address an issue arising out of the pleadings, a Commissioner could be appointed. Further, the judgments referred to by the learned counsel for the petitioner are not applicable on the facts of the present case, as they are deal with the issue of encroachment, which is not the case in the present matter.
(15) Under such circumstances, the order of the Trial Court is found to be unassailable in nature, there is no illegality or jurisdictional error 5 HIGH COURT OF MADHYA PRADESH Writ Petition No.7830/2012 (Smt. Vimla Tyagi Vs. Ram Niwas Sharma) warranting interference under Article 227 of the Constitution of India. (16) The petition being sans merits and is hereby, dismissed.
(Milind Ramesh Phadke) Judge Pawar* ASHISH PAWAR 2022.04.12 17:19:55 +05'30'