Madhya Pradesh High Court
Smt. Nirmla Singh vs Smt. Gulab Kali Tripathi on 12 October, 2022
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 12th OF OCTOBER, 2022
MISC. PETITION No. 2183 of 2021
BETWEEN:-
SMT. NIRMLA SINGH W/O SHRI AMBIKESH
PRATAP SINGH, AGED ABOUT 51 YEARS,
OCCUPATION: HOUSE WORK JAI PRAKASH
NAGAR URRAHAT REWA TAH. HUZUR DISTT.
REWA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAVENDRA SHUKLA, ADVOCATE)
AND
1. SMT. GULAB KALI TRIPATHI W/O SHRI KAPIL
DEV TRIPATHI, AGED ABOUT 59 YEARS,
OCCUPATION: SERVICE NEHRU NAGAR REWA
TAH. HUZUR DISTT. REWA (MADHYA PRADESH)
2. BHAMBHU PRASAD MISHRA S/O SHRI
MOTIRAM MISHRA, AGED ABOUT 49 YEARS,
R / O MOHALLA SAMAN REWA TAH. HUZUR
DISTT. REWA MP (MADHYA PRADESH)
3. RAJESH KUMAR SHUKLA S/O SHRI KISHOR
PRASAD SHUKLA, AGED ABOUT 62 YEARS, R/O
GHOGHAR THANA CITY KOTWALI REWA TAH
HUZUR DISTT. REWA MP (MADHYA PRADESH)
4. THR STATE OF MP. THR. COLLECTOR REWA
DISTT. REWA MP. (MADHYA PRADESH)
.....RESPONDENTS
(SHRI ASHUTOSH TIWARI, ADVOCATE FOR RESPONDENT NO. 1) (SMT. SWATI ASEEM GEORGE, PANEL LAWYER FOR RESPONDENT NO. 4/STATE) Th is petition coming on for hearing this day, th e court passed the Signature Not Verified SAN following:
Digitally signed by VAIBHAV YEOLEKARDate: 2022.10.13 11:46:36 IST ORDER 2 This Miscellaneous petition is filed being aggrieved of order dated 1/04/2021 passed by the learned VIII Additional District Judge, Rewa in Civil Suit No. 42-A/2011 refusing an application under Order 26 Rule 9 C.P.C. despite the fact that admittedly the dispute between the parties is as to the demarcation.
Learned counsel for the petitioner has placed reliance on the judgment of the co-ordinate Bench of this Court in Jaswant S/o Kashi Ram Yadav Vs. Deen Dayal 2011 (2) M.P.L.J. 576 wherein it is held that it is the duty of the court to issue a commission by appointing an employee of revenue department not below the rank of Revenue Inspector to get the land in dispute demarcated and its identification. No application from any party is required in any purpose.
Placing reliance on this judgment, it is submitted that when there is a dispute between the boundaries, the trial court should have allowed the application to carry out the demarcation of the disputed land.
Learned counsel for the petitioner in his turn places reliance on the judgment of the Supreme Court in Subhaga and others Vs. Shobha and others (2006)5 SCC 466 wherein it is held that a property can be identified either by boundaries or by any other specific description. Once, a property has been identified by boundaries, even if there is any discrepancy, normally, the boundaries shall prevail.
However, this judgment of the Supreme Court is on a different aspect. It is not in regard to demarcation of the property. Therefore, in view of the judgment of the co-ordinate Bench of this court in Jaswant (supra) wherein Signature Not Verified SAN reliance is placed on the judgment of the Supreme court in Shreepat Vs. Digitally signed by VAIBHAV YEOLEKAR Rajendra Prasad and others (2000)6 Supreme 389, I am of the opinion that Date: 2022.10.13 11:46:36 IST the trial court erred in not permitting the demarcation of the suit land in the 3 hands of the competent authority.
The impugned order is quashed. The trial court is required to appoint a Commissioner not below the rank of Revenue Inspector to carry out demarcation and then proceed in accordance with law.
In above terms, the petition is disposed of.
(VIVEK AGARWAL) JUDGE vy Signature Not Verified SAN Digitally signed by VAIBHAV YEOLEKAR Date: 2022.10.13 11:46:36 IST