Devi Singh Vs Municipal Corporation Raipur

¶1

1

2025:CGHC:15446

NAFR

SMT NIRMALA RAO

HIGH COURT OF CHHATTISGARH AT BILASPUR

¶6

WP227 No. 204 of 2020

¶7

1 - Devi Singh S/o Bhagwan Singh Sahu Aged About 59 Years R/o Teachers Colony, Kota, Raipur Tehsil And District Raipur Chhattisgarh, District : Raipur, Chhattisgarh

¶8

... Petitioner

¶9

Versus

¶10

1 - Municipal Corporation Raipur Through Commissioner, Municipal Corporation Raipur Chhattisgarh, District : Raipur, Chhattisgarh

¶11

2 - Chhattisgarh State Electricity Board Raipur Through President Dhaganiya, Raipur Tehsil And District Raipur Chhattisgarh, District : Raipur, Chhattisgarh

¶12

---- Respondents

¶13

For Petitioner/ Plaintiff	: Shri Ankur Agrawal, Advocate.
For Respondent No.1	: Shri H.B. Agrawal, Senior Advocate with Ms. A. Sandhya Rao, Advocate.
For Respondent No.2	: None.

¶14

Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

¶15

02.04.2025

¶16

Heard on admission.

¶17

The petitioner has challenged the order passed by the learned Eighth Civil Judge, Class-I, Raipur in Civil Suit No.32-A/ 2015

¶18

-2-

¶19

dated 26.11.2019, whereby an application moved by the petitioner under Order 26 Rule 9 of CPC has been rejected.

¶20

Learned counsel for the petitioner would submit that the petitioner is the owner and possession holder of land bearing Survey Nos. 233/6 and 234/6, total admeasuring 0.017 hectares, situated at Village Gudhiyari, Thakkar Bapa, Ward No.9, Tahsil & District Raipur. He would contend that the defendants used a part of the land of the petitioner for the construction of a road and also erected electric poles thereon. He would further contend that before filing the suit, the demarcation was conducted by the Revenue Authorities, which revealed that 210 sq.ft. of land had been used by the respondents. He would also contend that during the pendency of the civil suit, the respondents again utilized an additional 360 sq.ft. of land for the construction of a road. He would further submit that the defendants denied the contention made by the plaintiff and therefore, an application under Order 26 Rule 9 of CPC was moved and it has been rejected by the learned trial Court. He would argue that the application should have been allowed to resolve the dispute involved in the civil suit.

¶21

On the other hand, learned Senior counsel would oppose the submissions made by counsel for the petitioner. Learned Senior counsel would submit that the petitioner cannot be permitted to collect evidence by filing an application under Order 26 Rule 9 of

¶22

3

¶23

CPC. He would further submit that the petitioner should have approached the Revenue Authorities for demarcation of the suit land instead of moving an application before the learned Court below. He would also submit that the learned trial Court has rejected the application after assigning sufficient reasons, therefore, the petition deserves to be dismissed.

¶24

Heard learned counsel appearing for the respective parties and perused the documents present on the record.

¶25

Order 26 Rule 9 of CPC deals with Commissions to make local investigations and the same is reproduced here-in-below:-

¶26

“Order XXVI, Rule 9. Commissions to make local investigations.-- 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, 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:

¶27

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.”

¶28

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 Commissioner to find out the exact position. In relevant paras it was observed thus:-

¶29

-4-

¶30

“ 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.

¶31

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.”

¶32

Likewise, in the matter of Haryana Waqf Board Vs. Shanti Sarup and others reported in (2008) 8 SCC 671, in para 6, the Hon’ble Supreme Court held as under:-

¶33

“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.”

¶34

5

¶35

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 a Local Commissioner under Order 26 Rule 9 of the CPC held as under:-

¶36

“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.”

¶37

A Division Bench of the High Court of Madhya Pradesh in the

¶38

matter of Durga Prasad Vs. Parveen Foujdar & others reported in 1975 MPLJ 801, held that in the absence of an agreed map, the appointment of a Commissioner is necessary. The relevant para-8 is reproduced as under:-

¶39

“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 19-04-1969 shows that on the dates fixed

¶40

-6-

¶41

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 02-01-1979. The court accordingly, by its memo dated 10-01-1970 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. ”

¶42

Admittedly, during the pendency of the civil suit, the respondents utilized 360 sq.ft. of land for the construction of a road and this fact has been denied in the reply. It appears that there is a dispute with regard to encroachment over part of the suit land and therefore, an application under Order 26 Rule 9 of CPC was moved for the appointment of a Commissioner. The Learned trial Court rejected the application on the ground that a bar has been engrafted under Section 257 of the Chhattisgarh Land Revenue Code.

¶43

The reason assigned by the learned trial Court for rejecting the application appears to be erroneous. The suit was filed for possession, permanent injunction and compensation. There is a dispute with regard to the identity and area of encroachment of the subject land. The bar contained in Section 257 of the CGLRC would not apply where an application has been moved for the appointment of a Commissioner for the demarcation of land.

¶44

7

¶45

In view of the law laid down by the Hon’ble Supreme Court and the Division Bench of this Court along with the provisions of Section 257 of CGLRC and Order 26 Rule 9 of CPC, and further considering the facts of the present case, the order passed by the learned trial Court dated 26.11.2019 is hereby set aside. The application moved Order 26 Rule 9 of CPC is hereby allowed. The learned trial Court is directed to take necessary steps accordingly.

¶46

Interim order granted earlier is hereby vacated.

¶47

With the aforesaid observation(s), the petition is allowed at the admission stage itself. Sd/-

¶48

(Rakesh Mohan Pandey) Judge

¶49

Nimmi

Devi Singh v. Municipal Corporation Raipur

Case brief

What is this about?

What did the court decide?

Devi Singh v. Municipal Corporation Raipur

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Nai Dunia a Unit of Jagran Prakashan Limited Vs Satish Verma

Bhuruwa Ram Sahu (Now Dead) through Lrs Sukdev Sahu Vs Ramshila Bai

Shri Radhakrishna Mahila Swa Sahayata Samooh Vs State of Chhattisgarh

Prakash Talawar Vs High Level Verification and Scruitiny Committee

Mohan Jute Mill Limited Vs State of Chhattisgarh

Hansi Bai Vs Mansingh Dhruv