Madhya Pradesh High Court
Noor Mohammad (Dead) Thr. Lrs Mohd. Saif ... vs Haleem Mansoori on 21 February, 2022
Author: Vishal Mishra
Bench: Vishal Mishra
1
The High Court Of Madhya Pradesh
MP No. 3838 of 2021
(NOOR MOHAMMAD (DEAD) THR. LRS MOHD. SAIF ANSARI Vs HALEEM MANSOORI AND OTHERS)
Jabalpur, Dated : 21-02-2022
Shri Atul Anand Awasthy, Advocate for the petitioner.
Shri Manoj Kushwaha, Panel Lawyer for the respondent-State.
Heard on the question of admission.
The present petition under Article 227 of the Constitution of India has been filed challenging the order dated 13.7.2020 (Annexure-P-6) passed by the 13th A.D.J, Rewa and order dated 28.7.2020 (Annexure-P-5) passed by Civil Judge Class-I, Rewa; whereby, the application filed by the petitioner under Order 26 Rule 9 of C.P.C. has been dismissed.
I t is submitted that plaintiff/petitioner has preferred a Civil Suit for declaration and eviction of respondents No.1 to 7 from the property in suit situated in Nazool Plot No.5808/2, area 526 sq.ft. and plot No.5809 area 224 sq.ft. total 750 sq.ft belonging to the father of the petitioner. It is alleged that Abdul Rahim executed a sale-deed in favour of petitioner. The defendants was tenant of petitioner but abruptly the defendants stopped payment of rent to the plaintiff/petitioner. The defendants started creating hindrances in the right of the plaintiff/petitioner by raising certain construction over the land in dispute. Written statement was filed denying all the averments of the plaint and contending therein that the construction has raised on their land and no encroachment is being made on the land of the plaintiff/petitioner.
Thereafter, an application under Order 26 Rule 9 of C.P.C.was filed seeking a direction for demarcation of the property so that the encroachment may be clearly pointed out. The aforesaid application was considered by this Court vide impugned order dated 17.08.2021 and the application was rejected on the ground that there is no boundary dispute between the parties and the alleged encroachment is required to be proved by leading cogent evidence. He has placed reliance upon the judgment passed by the Supreme Court in the case of Haryana Waqf Board Signature Not Verified SAN Vs. Shanti Sarup and others, reported in (2008) 8 SCC 671; wherein, in similar Digitally signed by MOHD IRFAN SIDDIQUI Date: 2022.02.28 18:25:32 IST circumstances the Hon'ble Supreme Court has allowed the application under Order 2 26 Rule 9 of C.P.C. Placing further reliance upon the judgments passed in M.P. No.1140/2017 (Rakesh Kumar Dubey & others vs. State of M.P., decided on 19.02.2018, he has prayed for similar relief being extended to them.
Heard learned counsels for the parties and perused the record.
From perusal of the record, it is seen that the plaintiff has alleged that some encroachment is being made by the defendant on their part of land which belongs to the plaintiff which was specifically denied by the defendant in their written statement. It is not a case where the boundary dispute is alleged between the parties or there is no agreed map. Rather, both plaintiff as well as defendant are claiming their right over the property in dispute by virtue of sale-deeds.
The provisions of under Order 26 Rule 9 of C.P.C. are required to be seen:-
Order 26, Rule 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.
From the perusal of the aforesaid, it is seen that the Commission can only be directed where there is boundary dispute. In the present case, there is no dispute with respect to the boundaries of the alleged property rather there is a specific case of the plaintiff that the property belonging to the plaintiff is been encroached upon by the defendant. In such circumstances, the learned trial Court has not committed any error in rejecting the application under Order 26 Rule 9 of C.P.C. as the same will amount to collecting of evidence.
The judgment passed by the Division Bench of this Court in the case of Durga Prasad Vs. Parveen Foujdar and others, reported in 1975 MPLJ 440 Signature Not Verified SAN has held as under:-Digitally signed by MOHD IRFAN SIDDIQUI
In cases where there is a dispute as to encroachment the fact whether Date: 2022.02.28 18:25:32 IST 3 there is such an encroachment or not cannot be determined in the absence of an agreed map, except by the appointment of a Commissioner under Order 26 Rule 9 of the C.P.C.
It is also reported in 2004 (2) MPHT 14, Ashutosh Dubey and another Vs. Tilak Grih Nirman Sahakari Samiti Maryadit, Bhopal and another.
The provisions of Order 26 Rule 9 of C.P.C. cannot be used for collecting the evidence. The encroachment as alleged by the plaintiff is required to be established by him by leading the cogent evidence. The learned trial Court has considered the aforesaid aspects and has rightly rejected the application. This is the petition under article 227 of Constitution of India, wherein this Court in exercising the supervisory jurisdiction a very limited scope of interference is available to this Court specially in the light of the judgement passed by the Hon'™ble Supreme Court in the case of Shalini Shyam Shetty Vs. Rajendra Shhankar Patil reported in (2010) 8 SCC 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."
In the present case also there is no agreed map between the parties and the dispute can only be resolved by adducing cogent evidence. Application under Order 26 Rule 9 C.P.C. cannot be enforced as a tool for collection of evidence as has been held in the aforesaid cases.
Considering the overall facts and circumstances of the case and also the law laid down by the Hon'ble Supreme Court and considering the provisions of under Signature Not Verified SAN Order 26 Rule 9 of C.P.C., no illegality is committed by the trial Court in rejecting Digitally signed by MOHD IRFAN SIDDIQUI the application under Order 26 Rule 9 of C.P.C.
Date: 2022.02.28 18:25:32 IST 4The petition sans merits and is accordingly dismissed.
(VISHAL MISHRA) JUDGE irfan Signature Not Verified SAN Digitally signed by MOHD IRFAN SIDDIQUI Date: 2022.02.28 18:25:32 IST