Madhya Pradesh High Court
Bhanta S/O Nandkishore Deceased ... vs Banwari Lal Sharma on 19 September, 2019
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
THE HIGH COURT OF MADHYA PRADESH
M.P.No.4121/2019
(Bhanta Vs. Banwari Lal Sharma & others)
Gwalior, Dated:-19.09.2019
Mr. H.K. Shukla, learned counsel for the petitioner.
Mr. Amit Lahoti, learned counsel for respondent No.1.
Heard finally with the consent of both the parties. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity, legality and proprietary of the order dated 01.08.2019 (Annexure P-1) passed by the Second Additional Civil Judge, Class I, Sabalgarh, District Morena in Civil Suit No.8/2019, whereby the application filed by the respondents/defendants under Order 26 Rule 9 of the Code of Civil Procedure (herein after referred at as 'CPC') for appointment of the Commission has been allowed.
Brief facts of the case are that the petitioner/plaintiff filed a suit for permanent injunction on the ground that the agriculture land situated at Survey No.1433 Area 0.26 in Village Semai, Tahsil Kailaras, Morena, the petitioner has constructed a house 20 years back and the respondents/defendants are the owner of land behind the back of petitioner's house bearing Survey No.1422. The respondents/defendants are forceably trying to damage the residential house of the petitioner by damaging the foundation of the house. In these circumstances, suit for permanent injunction has been filed for restraining the respondents not to interfere with the possession of the 2 THE HIGH COURT OF MADHYA PRADESH M.P.No.4121/2019 (Bhanta Vs. Banwari Lal Sharma & others) house belonging to the petitioner.
Written statement has been filed, in which it is stated that the petitioner/plaintiff is trying to encroach upon the defendant's land. The respondents have filed an application for demarcation before the Tahsildar, Kailaras in respect of Survey No.1422. The said proceeding is pending and with an intent to bypass the demarcation proceeding, the respondents have filed the application under Order 26 Rule 9 of CPC. Learned Trial Court allowed the application on the ground that Survey No.1423 and 1422 are adjacent to each other.
On perusal of the Panchnama dated 12.01.2019 prepared by the Revenue Inspector, it appears that there is a dispute with regard to the boundary of Survey No.1422 and 1423. The boundary can be ascertained only on the basis of the report submitted by the Commissioner. In such circumstances, the application under Order 26 Rule 9 of CPC was allowed.
Learned counsel for the petitioner contended that admittedly, there is no dispute of title but the dispute is regarding boundary of Survey No.1422 and 1423. Since the suit is not in respect of declaration, therefore, application could not have been allowed. Section 257 (g) of M.P. Land Revenue Code bars the jurisdiction of civil suit in respect of demarcation and exclusive jurisdiction is with the Revenue Authority. Learned counsel for the petitioner has relied 3 THE HIGH COURT OF MADHYA PRADESH M.P.No.4121/2019 (Bhanta Vs. Banwari Lal Sharma & others) on the judgment reported in 2009 RN 192; Seva Ram Vs. Sugan Bai & others to contend that as per Section 257 (g) M.P. Land Revenue Code dispute regarding demarcation of agriculture land, the exclusive jurisdiction vests in the Revenue Court and the jurisdiction of Civil Court is barred. He further contended that in 2004 (2) MPHT 14; Ashutosh Dubey And another. Vs. Tilak Grah Nirman Sahakari Samiti Maryadit, Bhopal and another, it is held that issuance of Commission for investigating the fact that which of the party is in possession of the property is beyond the scope of Order 26 Rule 9 of CPC.
On the other hand, learned counsel for the respondent vehemently opposed the contentions raised by the petitioner and submitted that the petitioner is an encroacher. There is no dispute of title. The judgment in the case of Seva Ram (supra) is not applicable to the fact and circumstances of the present case as the jurisdiction is barred only if the suit is for demarcation. Application was filed for the purpose of determining the actual location of the boundary. The trial Court rightly allowed the application. As such no interference is called for and instant petition deserves to be dismissed.
Learned counsel for the respondents has relied upon the judgment reported in 1998 MPWN SN 40, Kamlesh Sharma (Smt.) Vs. Komal Chand Kesharwani; 1975 JLJ 340, Durga Prasad vs. 4 THE HIGH COURT OF MADHYA PRADESH M.P.No.4121/2019 (Bhanta Vs. Banwari Lal Sharma & others) Praveen Foujdar and Ors.; 2008 (4) MPHT 306 (SC), Haryana Waqf Board Vs. Shanti Sarup and others; 2011 (3) MPHT 422, Jaswant Vs. Deen Dayal and 2003 (3) MPHT 347, Heeralal Vs. Thakurdas to contend that identity of land in dispute is to be ascertained by appointment of Commission. Moreover by allowing the application, no prejudice is caused to the petitioner.
Considering the arguments advanced by both the parties, the learned trial Court has rightly came to the conclusion. In such circumstances, it is necessary to Commission to ascertain actual location of the boundary. In 1999 (2) MPLJ SN 27, Kapuri Devi wd/o Khachiram and Ors., it has been held that appointment of Commission to take measurement is the invariable rule when there is dispute as to boundary or as to encroachment. Apart from this, dispute with regard to boundary cannot be ascertained orally, therefore, to locate the exact position Commission is required to be appointed as has been held in the case of Nimabai vs. Saraswatibai reported in 2002 RN 416 (HC), the appointment of Commission is necessary for proper adjudication of the matter.
This Court has consistently taken a view that appointment of Commission is discretion of the trial court, if discretion has been exercised by the Court below it cannot be said that the court has committed error of jurisdiction by allowing the application under 5 THE HIGH COURT OF MADHYA PRADESH M.P.No.4121/2019 (Bhanta Vs. Banwari Lal Sharma & others) Order 26 Rule 9 of CPC. Considering Rule 9 of Order 26 of CPC, the language itself is in equivocal terms as it states that any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and report thereon to the Court. Since the nature of the relief is purely discretionary, the Court below is justified in allowing the application under Order 26 Rule 9 of CPC. The learned Trial Court has not committed any jurisdictional error so as to warrant interference in the matter.
Accordingly, this writ petition is dismissed. No order as to costs.
(S.A. Dharmadhikari) Judge bj/-
BARKHA JHA 2019.09.2 3 10:23:53 +05'30'