Disposed¶26

Smt. Kavita Das Vaishnav v. Smt. Khursheed Jahan

Chhattisgarh HC20 Nov 2024WP227/105/2020

Case brief

AI extract

What is this about?

Article 227 writ petition; High Court of Chhattisgarh Bilaspur; Order 26 Rule 9 CPC; demarcation of land; appointment of Commissioner; survey commission; dispute as to identity of land; injunction suit; temporary injunction allowed; Civil Suit No.142A/14 Durg; Misc Civil Appeal No.09/2019; appellate court observation para 11; application to be decided afresh; Shreepat v. Rajendra Prasad JT 2000 (7) SC 379; Mukund Dammani vs. Mamta Hinduja; WP(227) No.736 of 2014; Deepak Kumar Tiwari; Kavita Das Vaishnav; Khursheed Jahan.

What did the court decide?

Petition disposed of with a direction to the concerned trial Court to decide the Order 26 Rule 9 CPC demarcation application afresh in light of the principles in Shreepat v. Rajendra Prasad (supra). ¶26

Smt. Kavita Das Vaishnav Vs Smt. Khursheed Jahan — Writ and Judicial Review | Chhattisgarh HC (2024)

What the court decided

AI extract

Outcome

Petition disposed of with a direction to the concerned trial Court to decide the Order 26 Rule 9 CPC demarcation application afresh in light of the principles in Shreepat v. Rajendra Prasad (supra).

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Issue for consideration

Whether, given that the trial Court dismissed the defendant's application under Order 26 Rule 9 CPC for demarcation of land by appointing a Commissioner without taking into account the appellate Court's observation that demarcation is necessary owing to a dispute as to the identity of the land, the trial Court should be directed to decide the application afresh.

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Court's answer

Considering that the subject application under Order 26 Rule 9 CPC was dismissed by the trial Court without considering the observations made by the appellate Court in its order dated 24.10.2019 passed in Misc Civil Appeal No.9/2019, the concerned trial Court is directed to decide the application afresh in light of the principles rendered in Shreepat v. Rajendra Prasad (supra).

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Detailed headnote1 paragraphs

HIGH COURT OF CHHATTISGARH (Bilaspur), WP227 No. 105 of 2020, decided 21.11.2024 (Deepak Kumar Tiwari, J.). Petition under Article 227 of the Constitution of India assailing the order dated 04.12.2019 of the 5th Additional Civil Judge Class 2, Durg C.G. in Civil Suit No.142A/14, whereby the application preferred by the petitioner/defendant under Order 26 Rule 9 CPC for demarcation of land by appointing a Commissioner was dismissed. In an injunction suit in which a temporary injunction had been allowed in favour of the plaintiff on 02.02.2019, the defendant's demarcation application (moved 15.10.2019) was dismissed without regard to the First Additional District Judge to the First Additional Judge, Durg allowing Misc. Civil Appeal No.9/2019 on 24.10.2019, wherein para 11 categorically observed that there is a dispute as to the identity of the land and demarcation is necessary. Holding the dismissal of the application without considering those appellate observations inappropriate, the High Court disposed of the petition directing the trial Court to decide the application afresh in light of the principles in Shreepat v. Rajendra Prasad, JT 2000 (7) SC 379 (quoted passage: where there is serious dispute as to area, boundaries and identity of land, courts should have identity established through a survey commission before decreeing the suit). Counsel also instanced this Court's order of 16.11.2018 in WP(227) No.736 of 2014 (Mukund Dammani vs. Mamta Hinduja and Others), where a similarly dismissed Commissioner-appointment application was restored for fresh decision; the Court referred to, but did not expressly rest on, that precedent.

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2024:CGHC:45542

NAFR

AVINASH SHARMA

Digitally signed by AVINASH SHARMA Date: 2024.11.22 14:30:26 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WP227 No. 105 of 2020

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Smt. Kavita Das Vaishnav W/o Satish Das Vaishnav Aged About 36 Years Resident Of 223/5, Colony Maitrikunj Rishali Bhilai, Tahsil And District - Durg Chhattisgarh Through Power Of Attorney Holder Satish Das Vaishnav, Son Of Late Jageshwar Das Vaishnav, Aged About 42 Years Know (37 Years Mentioned In Power Of Attorney).

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... Petitioner.

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versus

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Smt. Khursheed Jahan W/o Abdul Manan Siddhiqi, Present Resident Of House No. E81, Nanhe Park, Uttam Nagar (West) New Delhi - 110059 Through Mukhtyar Mahfuj Ahmed, Aged About 45 Years S/o Jamirul Hassan, R/o 3/H, Street No. Avenue B, Sector 11 Zone 1, Post Khurshipar Bhilai, Tahsil And District Durg Chhattisgarh.

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.. Respondent.

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For Petitioner : Shri Goutam Khetrapal and Shri Avinash Chand Sahu, Advocates.

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Hon'ble Shri Justice Deepak Kumar Tiwari

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Order On Board

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21.11.2024

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This petition has been filed under Article 227 of the Constitution of India assailing the order dated 04.12.2019 passed by 5^th Additional Civil Judge Class 2, Durg C.G. in Civil Suit No.142A/14 whereby, application

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preferred by petitioner/defendant under Order 26 Rule 9 CPC for demarcation of land by appointing a Commissioner, was dismissed.

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Learned counsel for the petitioner would submit that respondent/plaintiff had filed a civil suit for injunction. He would further submit that earlier an application for temporary injunction was allowed in favour of the plaintiff vide order dated 02.02.2019. After the aforesaid application was allowed, defendant moved an application under Order 26 Rule 9 CPC on 15.10.2019. While the application preferred on 15.10.2019 was pending consideration, appeal i.e. Miscellaneous Civil Appeal No.09/2019 preferred by the defendant/petitioner against the interim injunction granted by the trial Court, was allowed by the First Additional District Judge to the First Additional Judge, Durg vide judgment dated 24.10.2019, wherein it has been categorically observed at para 11 that there is dispute with regard to identity of the land and to ascertain the same, demarcation is necessary. He would further submit that as while deciding the application under Order 26 Rule 9 CPC the observation made on 24.10.2019 at para 11 was not taken into consideration, therefore, this petition may be disposed of directing the trial Court to decide the application in question afresh. Learned counsel would further submit that in the order passed by this Court on 16.11.2018 in WP(227) No.736 of 2014( Mukund Dammani vs. Mamta Hinduja and Others) , it has been observed that without considering the necessity of appointing Commissioner, when there is dispute of identity of land between the parties, the dismissal of the application is not proper and the said application was restored to be decided afresh.

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To buttress his submission, learned counsel for the petitioner would refer to Para 4 of the judgment passed in Shreepat v. Rajendra Prasad & Others { JT 2000 (7) SC 379}, which is as under:-

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"4. 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....."

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I have heard learned counsel for the petitioner and perused the documents annexed with the petition carefully.

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Having considered the submission made by learned counsel for the petitioner, particularly considering that earlier the subject application was dismissed without considering the observations made by the appellate Court in its order dated 24.10.2019 passed in Misc Civil Appeal No.9/2019, this Court deems it appropriate to direct the concerned trial Court to decide the application in question afresh in light of the principles rendered in the matter of Shreepat v. Rajendra Prasad ( supra ). Ordered accordingly.

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With the aforesaid observation/direction, this Petition is disposed of.

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Sd/-

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(Deepak Kumar Tiwari)

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Judge

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Avinash

Smt. Kavita Das Vaishnav v. Smt. Khursheed Jahan

Case brief

What is this about?

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Smt. Kavita Das Vaishnav v. Smt. Khursheed Jahan

Case brief

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