Chintaram Vs Tularam and Ors.

“Whether the learned first appellate court has committed an error of law by affirming the order of the trial Court and rejecting the application under Order 26 Rule 9 CPC, causing prejudice to the appellant and in order to ascertain the dispute by inspection of the disputed land could have been done by appointing the Commissioner?”

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This appeal is filed by the plaintiff under Section 100 of CPC challenging therein the judgment and decree passed by the learned IInd Additional District Judge, Rajnandgaon (C.G), in Civil Appeal No. 18-A of 2012, whereby the judgment

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and decree dated 18.10.2010 passed in Civil Suit No. 24A/2009 by the learned trial Court has been affirmed.

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The facts of the present case are that the plaintiff filed a suit for declaration of title and permanent injunction, and he specifically sought a declaration that the sale deed executed by defendant No. 1 in favour of defendant No. 2 dated 04.06.2005 vide Ex. P/4 is not binding upon him, as survey No. 433 was partitioned 25 years ago between Tularam/defendant No. 1 and Sitaram (father of the plaintiff). The father of the plaintiff got 0.08 acre of land, whereas, defendant No.1 got 0.07 acre of land, out of 0.15 acre of total land. On 04.06.2005, defendant No. 1 sold 0.015 acres of land through registered sale deed to defendant No. 2. The boundaries of the land are detailed as under: -

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South
road
House of Chowaram
East West
Bharat’s land 433/1 House of Maniram
433/2 House of Chintaram
Disputed
property
Road

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North

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It is pleaded by the plaintiff that defendant No. 1 has shown boundaries of the plot which fell in his share, therefore, he filed a suit seeking the relief as stated above. Defendant No. 1 filed the written statement and denied the plaint averments and specifically stated that in the share given to the plaintiff, there was some part which was given in partition to defendant No. 1 and the same is shown in the map appended to the plaint as Schedule-A.

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Defendant No. 2 filed the written statement and stated that he was a bona

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fide purchaser.

¶29

During the pendency of the Civil Suit, an application for the demarcation was moved by the plaintiff before the Revenue Authorities. The demarcation report was submitted, where it was found that defendant No. 1 had sold the suit land to defendant No. 2, which is in the share of the plaintiff and the author of the demarcation report i.e. Revenue Inspector was examined as PW-3, namely, S.P. Dwivedi, who categorically supported the case of the plaintiff. Thereafter, the plaintiff moved an application under Order 26 Rule 9 of CPC to ascertain the boundaries as there was a dispute pertaining to boundaries, as defendant No. 1 had sold the part of the land which was in the share of the plaintiff. The aforesaid application was rejected by the learned trial Court vide Order dated 19.07.2010.

¶30

The learned trial Court after appreciating the entire documentary as well as oral evidence dismissed the Civil Suit filed by the plaintiff, on the ground that there is a clear description in the sale-deed (Ex. P/4) and the demarcation report (Ex. P/1) strengthens the boundaries of sale-deed. The plaintiff preferred an appeal under Section 96 of the CPC before the learned first appellate Court and the same was also dismissed, affirming the findings recorded by the learned trial Court.

¶31

Learned counsel for the appellant would submit that there was a dispute with regard to boundaries. He would argue that from a perusal of the map appended to the plaint, it is quite vivid that the partition shown in the map is improbable and unusual. The map would show that the first part of survey No. 433/1, ad-measuring 0.07 acre of land was in the share of defendant No. 1, whereas, in survey No. 433/2, ad-measuring 0.08 acre of land is in the share of plaintiff. He would further submit that defendant No. 1 has sold some portion of the land which is in share of the plaintiff. He would also submit that in the demarcation

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report, R.I. (PW-3), namely, S.P. Dwivedi has categorically stated that there was no division of survey No. 433 prior to selling and defendant No. 1 sold certain part of survey No. 433/2 which is in the share of the plaintiff. He would emphasize that though a specific ground was raised in the appeal with regard to the rejection of the application filed under Order 26 Rule 9 of the CPC before the learned first appellate Court, the same was turned down.

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On the other hand, learned counsel for defendants No. 1 and 2 would support the judgments passed by the learned Courts below. He would submit that there is no description of the part of encroachment in the plaint. He would further submit that the plaintiff has nowhere stated with regard to the area of the encroachment. He would also submit that there is a demarcation report (Ex. P/1) and according to it, there is no encroachment and defendant No. 1 has sold the property which was in his share; therefore, the learned Courts below rightly dismissed the suit filed by the plaintiff.

¶35

Ms. Ishwari Ghritlahare, P.L. for the State would support the judgments passed by the learned Courts below.

¶36

I have heard learned counsel appearing for the parties and perused the records.

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From a perusal of the records, it appears that it is not in dispute that survey No. 433 was divided between two brothers namely, Sitaram and Tularam 25 years ago. In share of the suit property, Sitaram got 0.08 acre of land, whereas, Tularam got 0.07 acre of land and the same is evident from the map appended to the plaint. On 04.06.2005, Tularam/defendant No. 1 sold 0.015 acres of land to defendant No. 2 through registered sale-deed, but he described the boundaries of the plot which is in the share of the plaintiff and the same is evident from the description of boundaries given in the sale-deed. In the demarcation report (Ex. P/1), the revenue

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authorities have demarcated the suit property with clear findings with regard to the encroachment. The learned first appellate Court while dealing with the demarcation report (Ex. P/1), categorically held that the demarcation report is not clear with regard to encroachment and there is a dispute pertaining to boundaries between the parties. The learned Courts below clearly held that the plaintiff and defendant No. 1 are title holders of their shares i.e., 433/1 and 433/2. It is further held that the plaintiff had to prove that defendant No. 1 sold the land which is in share of the plaintiff. The learned Courts below relied upon the demarcation report and according to it, there is no dispute with regard to boundaries and the application moved under Order 26 Rule 9 of CPC was rejected by the learned trial Court on the ground that there is already a demarcation report.

¶40

The Hon’ble Supreme Court in the matter of Shreepat Vs. Rajendra Prasad & others reported in JT 2000 (7) SC 379, while dealing with identical facts and situations, remanded the matter back to the trial Court for appointing Survey Commission to find out the exact position. In relevant paras it was observed thus:-

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“3. The principal contention raised by learned Counsel for the Appellant is that though there was a serious dispute with regard to identity of the land in dispute, whether the land in dispute formed part of Khasra No.257/3 or Khasra No.257/1, the Courts below did not get identity established and decreed the suit of the Respondent only on the basis of oral evidence which was not sufficient for the purpose of establishing the identity of the land in dispute at the spot.

¶42

In our opinion, this contention is correct. Since there was a serious dispute with regard to the area and boundaries of the land in question, especially with regard to its identity, the courts below, before decreeing the suit should have got the identity established by issuing a survey commission to locate the plot in dispute and find out whether it formed part of Khasra No.257/3 or Khasra No.257/1. This having not been done has resulted in serious miscarriage of justice. We consequently allow the appeal, set aside the order passed by the courts below as affirmed by the High Court and remand the case to the trial Court to dispose of the suit afresh in the light of the observations made above and in accordance with law.”

¶43

Likewise, in the matter of Haryana Waqf Board Vs. Shanti Sarup and

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others reported in (2008) 8 SCC 671, in para 6, the Hon’ble Supreme Court held as

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under:-

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“6. It is also not in dispute that even before the appellate court, the appellant Board had filed an application for demarcation of the suit land. In our view, this aspect of the matter was not at all gone into by the High Court while dismissing the second appeal summarily. The High Court ought to have considered whether in view of the nature of dispute and in the facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land.”

¶48

Recently, in the matter of Ram Lal & Ors. v. Salig Ram & Ors ., reported in JT 2019 (2) SC 106, the Hon’ble Supreme Court with regard to the necessity of the appointment of Local Commissioner under Order 26 Rule 9 of the CPC held as

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under:-

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“18. In the totality of circumstances, in our view, for just and effectual determination of all the questions involved in the matter, the proper course is of issuing a fresh Commission and for direction to the Trial Court to decide the entire suit afresh on the issues as originally framed as also on the additional issues after taking the report of the Local Commissioner afresh and affording an opportunity to the parties to submit their objections, if any.”

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The Division Bench of the High Court of Madhya Pradesh in the matter of Durga Prasad Vs. Parveen Foujdar & others reported in 1975 MPLJ 801, has

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held that in the absence of an agreed map; the appointment of a Commissioner is necessary. The relevant para-8 is reproduced as under:-

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“25. In cases where there is a dispute as to encroachment, the fact whether 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 CPC. ON 15.09.1996 the plaintiff, accordingly, applied for the issue of a commission to the Director of Land Records for a theodolite survey of the plaintiff's leasehold area. The court by its memo dated 11-10-1966 enquired from Director of Land Records whether he was prepared to undertake the work. The Director of Land Records by his memo dated 01-12-1966 signified his willingness. The Collector's memo dated 19-041969 shows that on the dates fixed for the purpose, neither the plaintiff nor any person authorized by him was present at the site. For reasons best known to the plaintiff, he did not press the application for commission vide order sheet dated

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02-01-1979. The court accordingly, by its memo dated 10-011970 recalled the writ of commission issued to the Director of Land Records. The plaintiff,therefore rested his case on the plaint map, Ex.P-1,and his oral evidence. It is needless for us to stress that no finding as to the alleged encroachment can be reached on the oral evidence adduced by the plaintiff. The plaintiff has not examined any witness to prove that he had surveyed the area, and found on actual measurements that the pit EFGH market in the plaint map, Ex.P-1, fell within his leasehold area.”

¶56

Since, there is a serious dispute between the parties concerning boundaries as well as the area of the suit land especially about the identity of the land, whether the land sold by defendant No. 1 is owned by the plaintiff or owned by defendant No. 1, therefore, the learned trial Court ought to have collected the evidence by issuing Commission according to the provisions of Order 26 Rule 9 of the CPC and rejection of such application resulted into serious miscarriage of justice, and thus, the learned trial Court committed an error of law which has been affirmed by the learned first appellate Court.

¶57

In view of the above, the judgment and decree passed by both the Courts below are hereby set aside . The application filed by the plaintiffs before the trial Court under Order 26 Rule 9 of the CPC is allowed with the following directions:-

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(i) The Revenue Inspector of the concerned circle is appointed as the local Commissioner however, the trial Court is at liberty to appoint/replace/substitute another Revenue Inspector, if the occasion so arises;

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(ii) The trial Court shall issue a writ of commission to the concerned Revenue Inspector to submit his report regarding the boundary or identity of the suit land within 30 days from the date of receipt of the writ of commission;

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(iii) After receipt of the report of the local commissioner, the parties will be entitled to proceed in accordance with the law; and

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(iv) The Collector, Rajnandgaon is directed to ensure demarcation is done expeditiously by the Revenue Inspector appointed by the trial Court and that the report is submitted well in time.

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In the result, this second appeal is allowed to the extent indicated

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hereinabove. The substantial question of law is answered in the affirmative accordingly. The parties are directed to appear before the learned trial Court on the 5th of March, 2024. The suit was filed in the year 2007; therefore, the learned trial Court is requested to conclude the proceedings of the Civil Suit preferably within a period of 8 months from the date of receipt of a copy of this order.

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A decree be drawn accordingly.

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No orders as to cost(s).

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Sd/- (Rakesh Mohan Pandey) Judge

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siddhant

Chintaram v. Tularam and Ors.

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Chintaram v. Tularam and Ors.

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