Madhya Pradesh High Court
Soukhilal Singh vs Vijay Kumar Vishwakarma on 9 March, 2022
Author: Rohit Arya
Bench: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
ON THE 9th OF MARCH, 2022
MISC. PETITION No. 1582 of 2018
Between:-
1. SOUKHILAL SINGH S/O SHRI RAMMILAN SINGH ,
AGED ABOUT 72 YEARS, OCCUPATION:
AGRICULTURIST AND ADVOCACY, R/O VILLAGE
KHAMHARIYA TAHSIL RAGHURAJNAGAR SATNA,
DIST. SATNA (MADHYA PRADESH)
2. DINKER SINGH S/O SOUKHILAL SINGH , AGED
ABOUT 44 YEARS, OCCUPATION: AGRICULTURIST
AND ADVOCACY VILLAGE KHAMHARIYA TAHSIL
RAGHURAJNAGAR (MADHYA PRADESH)
3. DIWAKER SINGH S/O SOUKHILAL SINGH , AGED
ABOUT 35 YEARS, OCCUPATION: AGRICULTURIST
V I L L A G E K H A M H A R I Y A TAHSIL
RAGHURAJNAGAR (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI UMESH SHRIVASTAVA, ADVOCATE)
AND
1. VIJAY KUMAR VISHWAKARMA S/O SHRI
MATHURA PRASAD VISHWAKARMA
OCCUPATION: SARPANCH, GRAM PANCHAYAT
KHAMHARIYA, JANPAD PANCHAYAT SOHAWAL,
TAHSIL RAGHURAJNAGAR SATNA R/O VILLAGE
KHAMHARIYA TAHSIL RAGHURAJNAGAR, SATNA
(MADHYA PRADESH)
2. SECRETARY GRAM PANCHAYAT KHAMHARIYA
SANTOSH SINGH S/O GANGA SINGH JANPAD
P A N C H A Y A T SOHAWAL TAHSIL
RAGHURAJNAGAR S ATN A VILLAGE BHARJUNA
K H U R P O S T B H A R J U N A K A L A TAHSIL
RAGHURAJNAGAR SATNA (MADHYA PRADESH)
3. CHIEF EXECUTIVE OFFICER JANPAD PANCHAYAT
SOHAWAL (MADHYA PRADESH)
4. STATE OF MP THROUGH COLLECTOR SATNA
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI RITWIK PARASHAR, GOVT. ADVOCATE)
T h is appeal coming on for hearing this day, the court passed the
following:
Signature Not Verified
SAN
ORDER
Digitally signed by priyanka pithawe mishra Date: 2022.03.11 18:05:53 IST The petitioner/plaintiff is before this Court taking exception to the impugned 2 order dated 13.03.2018 (Annexure-P/1). The trial Court has rejected the application under Order 26 Rule 9 CPC seeking appointment of commission for verification of the alleged encroachment over the land of the plaintiff. The trial Court has rejected the application as the same has been found to be tentamounting to the collection of evidence and the same cannot be permitted by way of appointment of commission under the said provision.
Learned counsel for the petitioner submits that it is a case of encroachment and therefore, the verification of the said fact through the commission shall not tentamount to collection of the evidence. Hence, the trial Court has misguided itself by dismissing this application.
Upon hearing learned counsel for the petitioner, this Court is in agreement with the order passed by the trial Court for more than one reason :-
(1) either party is yet to led evidence.
(2) The purpose for appointment of commission under Order 26 Rule 9 of CPC is for further elucidation of the facts if the trial Court is of the view that after collection of evidence, it is difficult to address an issue arising out of the pleadings of the parties.
Such is not the case in hand. Under such circumstances, the order of the trial Court is found to be impregnable in nature. Neither there is illegality nor jurisdictional error warranting interference under Article 227 of the Constitution of India. However, before parting with the case, it is considered apposite to observe that after parties lead evidence, if the trial Court is of the view that there is requirement of further elucidation of facts, on an application filed by the parties, it may consider the same on its own merits and proceed with the suit.
Accordingly, the petition stands dismissed.
(ROHIT ARYA) JUDGE Priya.P Signature Not Verified SAN Digitally signed by priyanka pithawe mishra Date: 2022.03.11 18:05:53 IST