SANJAY SHRIVASTAVA Vs. VIJAY DUA

JUDGEMENT

(1.) In this petition under Article 227 of the Constitution of India, the petitioners have assailed the order dtd. 4/5/2022 (Annexure P/3) passed in C.S. No.289-A/2021 by 22nd Civil Judge, Junior Division, Jabalpur (M.P.), whereby the application under Order 26 Rule 9 of C.P.C. for appointment of Commissioner filed by the respondent/plaintiff has been allowed.

(2.) Brief facts of this petition are that the respondent/plaintiff has filed a suit for declaration and permanent injunction in respect of land N.B.6, Patwari Halka No.16, R.N.M. Maharajpur, Tehsil Panagar, District Jabalpur, Khasra No.60, Rakba 0.880 Hectare and Khasra No.62 Rakba 0.220 Hectare. In fact, the petitioners had purchased the land in question by way of registered sale deed and on the basis of false complaint against the petitioners that they have started construction of the road work on the land of the respondent, therefore, the instant suit has been filed by the respondent/plaintiff. The respondent/plaintiff filed an application under Order 26 Rule 9 of CPC for the purpose of appointment of Commissioner for demarcating the land in question.The petitioners/defendants opposed the prayer and stated that during pendency of the civil suit, the Commissioner cannot be appointed. The said application has been filed only for the purpose of collecting evidence therefore, the application may be dismissed.

(3.) Learned counsel for the petitioners submits that the petitioners No. 1 and 2 are real brothers and they have executed 6(d) agreement with petitioner No.3 for developing their own land. As per the agreement the petitioner No.3 is constructing the road work on the land of petitioners No.1 and 2. The trial Court allowed the application without considering the preliminary objection raised by the petitioners/defendants in their reply. Learned trial Court has not considered the fact that the petitioners are in possession. Considering the arguments of both the parties, the learned trial court came to the conclusion that the application deserves to be allowed since there is no agreed map between the parties and where question of encroachment is involved, the power under Order 26 Rule 9 of CPC can very well be exercised. Being aggrieved therewith, the present petition has been filed.