Second appeal dismissed. The High Court distinguished Shreepat and held that a local commission under Order 26 Rule 9 CPC can elucidate disputed facts on the spot but cannot be used merely to ascertain the location of a plot, which is the appellant's burden. Opinion that the appeal fails.
Second appeal dismissed.
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Court No. - 53
Case :- SECOND APPEAL No. - 160 of 2017
Appellant :- Heerawati Devi Respondent :- Ram Nohar And 3 Others Counsel for Appellant :- Arun Kumar,Narendra Deo Shukla
Hon'ble Vivek Agarwal,J.
Heard Sri Arun Kumar, learned counsel for the appellant.
This second appeal has been filed by the plaintiff being aggrieved by the judgement dated 25.10.2016 passed by learned Additional District & Sessions Judge, Court No.3, Bhadohi, Gyanpur, in Civil Appeal No.03 of 2014, whereby challenge of the plaintiff/appellant to the judgement and decree passed by learned trial court on 12.12.2013 in Original Suit No.340 of 2004 passed by learned Civil Judge, (Junior Division) (2nd), Bhadohi, Gyanpur, has been rejected.
The appellant's contention is that a suit for mandatory injunction was filed, but trial court dismissed the suit on the ground that plaintiff during the pendency of the suit, tried to amend the plaint averments so as to correct the description of the land and took that to be a sign of plaintiff not having exact knowledge of the location of the plot over which she was alleging interference in the hands of the defendants. Thus, holding that land is not identifiable, dismissed the plaint. Learned First Appellate Court has affirmed the judgement and decree passed by the trial court on the similar grounds. Now at this stage, learned counsel for the appellant submits that if there was any dispute as to the identity of the land, then learned trial court itself could have issued a Commission exercising its authorities as vested in it under the provisions contained in Order 26 Rule 9 C.P.C. instead of dismissing the suit. He has placed reliance on the judgment of Supreme Court in case Shreepat vs. Rajendra Prasad & others reported in JT 2000 (7) SC 379 , wherein the ratio of the law laid down is that the courts below should not uphold the decree without getting the identity of the land established by issuing some survey commission.
The fact of the matter is that there are twin obligations ingrained in Rule 9 of Order 26 C.P.C., one is a duty has been enjoined upon the Court that if it deems that a local investigation will 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. However, it is also true that the object of the local investigation is not to collect evidence which can be taken in the Court, but the purpose is obtain such evidence, which from its peculiar nature, can only be held on the spot with a view to elucidate any point, which is left doubtful on the evidence produced before the Court. In view of such fact, Court is obliged to issue a local commission when there is a dispute as to the existence of a factual matrix like who is in possession of the property in dispute or as to whether there is any construction on the disputed property or not etc., and by no stretch of imagination, it is not the intention of the law makers to empower a Court to appoint a local commission to ascertain for the plaintiff/parties contesting in a suit as to the location of a plot.
In fact that is the ratio of the judgement in case of Shreepat (supra) . There was a dispute as to of which survey number the alleged encroachment was made i.e. whether it was of survey no.257/3 or 257/1 and in that context Hon'ble Supreme Court has directed that courts below erred in not upholding the decree without getting the identity of the land established as to the factum of encroachment/occupation.
In the present case, onus was on the plaintiff to have pointed out the exact location of the plot over which she was alleging encroachment and seeking issuance of mandatory injunction. It is not the duty of the Court to collect evidence for the parties and parties are required to stand on their own legs.
In view of such facts, laid ratio of law in case of Shreepat (supra) is not applicable to the facts of this case and Courts below have not erred in dismissing suit and first appeal.
This second appeal does not give rise to any substantial question of law as it is still open to the plaintiff/appellant to seek demarcation of her property from competent authorities as are empowered under law.
Therefore, appeal fails and is dismissed.
Order Date :- 28.2.2020 Shalini
3 issues framed by the court
Whether a court can be ordered to issue a local commission under Order 26 Rule 9 CPC solely to ascertain the location of a plot for the plaintiff.
Whether dismissal of the suit for lack of specific land identification was erroneous.
Whether the ratio in Shreepat is applicable when it is the party's duty to point out the exact location of the plot.
Colour shows how this judgement treated each authority
Shreepat vs. Rajendra Prasad & othersDistinguished¶7
Shreepat vs. Rajendra Prasad & others JT 2000 (7) SC 379 · Who else cites this
1 provisions across 1 enactments
Heerawati Devi
Ram Nohar
Vivek Agarwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
