Dismissed

Narayan Rajwade v. Gul Mohammad

Chhattisgarh HC20 Aug 2024WP227/716/2024

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a trial court's order appointing a commissioner under CPC Order 26 Rule 9 to demarcate disputed land where identity and boundaries were contested. The court held that local investigation was proper to resolve the serious dispute.

What did the court decide?

Petition dismissed; impugned order of the trial court allowing commission under Order 26 Rule 9 CPC stands affirmed.

Narayan Rajwade Vs Gul Mohammad — Property and Title | Chhattisgarh HC (2024)

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2024:CGHC:31631

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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WP227 No. 716 of 2024

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1 - Narayan Rajwade S/o- Chandrabali Rajwade Aged About 56 Years. 2 - Amit Rajwade S/o. Narayan Rajwade, Aged About 32 Years 3 - Anil Rajwade S/o Narayan Rajwade Aged About 28 Years. Petitoners are R/o Village Mahgawan P.S., Po. And Tahsil. Surajpur, DistrictSurajpur, (C.G.).

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versus

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1 - Gul Mohammad S/o Late Mohamad Wali Aged About 55 Years R/o Village Mahgawan P.S. Po. And Tahsil. Surajpur, District- Surajpur, (C.G.).

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2 - State Of Chhattisgarh Through Collector Surajpur, District- Surajpur ( C.G.).

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... Respondents.

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For Petitioners : Ms. Priyanka Mehta, Advocate.

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For State/Respondent : Shri Rajeev Bharat, GA.

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Hon'ble Shri Justice Deepak Kumar Tiwari

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Order On Board

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21/08/2024

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1. This petition has been filed under Article 227 of the Constitution of India assailing the legality and validity of order dated 06.08.2024, whereby application preferred by Respondent No.1/plaintiff under Order 26 Rule

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9 CPC was allowed.

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1. Brief facts of the case are that plaintiff/Respondent No.1 filed a civil suit for declaration of title, possession and permanent injunction with respect to Khasra No.1078/1 admeasuring 0.121 hectare land situated in village Mahagawan, Tahsil Surajpur, District Surajpur stating, inter alia, that the subject land was allotted on lease by the State Government to his father namely, Wali Mohammad in ‘Singh Dev Yojna’ on 03.09.1966. In the reply to application under Order 39 Rules 1 & 2 CPC, present petitioner had disputed the identity of the land stating that subject property for which the suit has been brought by the plaintiff is situated at a distance of 200 metre (approx.) from the alleged subject property. In these circumstances, plaintiff has filed an application under Order 26 Rule 9 CPC for identifying the subject land by appointing the Commissioner, which was allowed. Hence this petition.

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1. Learned counsel for the petitioners submits that the trial Court has grossly erred in allowing the application. It is well established that for collection of evidence a commission cannot be issued. She also submits that the Commission also cannot be issued for ascertaining actual possession in disputed property and that which of the party is in possession of the property is beyond the scope of Order 26 Rule 9 CPC. She places reliance in the matter of Dharam Singh and another v. Deenanath and others reported in {2019 (4) MPLJ 32} and referred to para 10 to 12, which read as under:-

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“10. The learned Appellate Court while reversing the judgment and decree passed by the Appellate Court and remanding the matter to the trial Court has not set aside the findings of the trial Court, on the

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contrary, has allowed the application under Order 26, Rule 9 of Civil Procedure Code commission is necessary for finding the shares of each person. The learned trial Court has observed that it is not clear that on how much area of araji No. 202, parties are in possession, therefore, he has directed for issuance of commission. It is a settled position of law that commission application under Order 26, Rule 9 of Civil Procedure Code cannot be allowed for commission for collection of evidence. This Court in the case of Chunnilal vs. Ramchandra, reported in 2002 (1) M.P.W.N. 105 has held that "the commission cannot be issued for ascertaining actual possession in disputed property. The evidence cannot be collected by the issue of commission. Issue have to be decided by the Court itself on the basis of evidence available on record." The Hon'ble Court has relied upon the judgment in the case of Babu Khan vs. Kapatan Singh, (1980) 2 MPWN 261, this Court in the similar circumstances has held as under :-

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"This Court cannot delegate to the Commissioner the trial of any material issue which it is itself bound to try. In other words, a Judge cannot depute to a Commissioner the functions which he can and should discharge himself. When the Court is faced with the problem as to who is in possession of the disputed immovable property, the problem has to be solved by the Court on the basis of the evidence on record"

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11. In other case Ashutosh Dubey and another vs. Tilak Grih Nirman Sahakari Samiti Maryadit, Bhopal and another, 2004(3) M.P.L.J. 213 = 2004 (2) M.P.H.T. 14 has observed in para 5 as under:-

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".......the scope of Order 26, Rule 9, Civil Procedure Code is to ascertain the matter in dispute, market value of any property, mesne profit or damages etc. But issuing 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 Civil Procedure Code. This question has to be decided by the Court after adducing the evidence by the parties. The Court has to record findings in this regard and the aforesaid job of the Court cannot be shifted to the Commissioner. In the circumstances the trial Court has exceeded his jurisdiction in issuing such a commission ascertaining the fact that which party is in possession of the property."

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12 . In the present case, the learned Appellate Court has allowed the application for commission just to ascertain the area after partition. The boundaries and in which the area as in host possession. The

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aforesaid aspect is not permissible because the same amounts to collection of evidence. The learned Appellate Court is duty bound to decide the issue on the basis of evidence available on record. Thus, the Court has committed a grave error in allowing the application. ”

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She further submits that plaintiff ought to have proved his case by his own evidence and the Court cannot collect evidence in favour of the Parties to prove their case. In view of such, impugned order is not sustainable and prays to allow the petition and set-aside the order impugned.

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1. I have heard learned counsel for the petitioner and perused the documents.

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1. In the present case, there is a serious dispute with regard to identity of the land in dispute. The Fact whether the subject land forms part of Khasra No.1078/1 admeasuring area 0.121 hectare or the said land belongs to Defendant was not decided only on the basis of oral evidence which was not sufficient for the purpose of establishing such fact. The question as to whether the subject land falls in the land of plaintiff or defendant could be decided by appointing the Commissioner. Order 26 Rule 9 CPC enables the Court in 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.

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1. Hon’ble Supreme Court in the matter of Shreepat v. Rajendra Prasad

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& others reported in {JT 2000 (7) SC 379} has held as under:-

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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

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purpose of establishing the identity of the land in dispute at the spot. 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 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. "

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1. Likewise, the Hon’ble Supreme Court in the case of Haryana Waqf Board v. Shanti Sarup and others reported in {(2008) 8 SCC 671} has

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held as 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 ."

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1. Reverting back to the facts of the present case, as there is a serious dispute between the parties with regard to identity of the subject land, therefore the trial Court has rightly exercised its powers under Order 26 Rule 9 CPC and there is no infirmity or illegality in the said order warranting any interference invoking supervisory jurisdiction under Article 227 of the Constitution of India.

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1. Resultantly, instant petition fails and is hereby dismissed.

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Sd/-

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(Deepak Kumar Tiwari) Judge

Narayan Rajwade v. Gul Mohammad

Case brief

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Narayan Rajwade v. Gul Mohammad

Case brief

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