SHASHI TOMAR Vs. ASHOK RAJORIYA

JUDGEMENT

(1.) PETITIONER /plaintiff filed a suit for declaration and permanent injunction, which was registered as Civil Suit No. 10A/2011. The written statement was filed by the other side. Along with plaint, the petitioner filed a map. In the coloured map, the petitioner has shown the disputed portion. It is stated in paras 1, 3 and 4 of plaint that from certain portion of the map earmarked properly, it is clear that there is an effort of encroachment on the disputed portion. In the written statement, respondents No. 2 and 3 disputed the map. It is stated that the plaintiff has no relation with the disputed portion. It is further stated that on disputed portion the defendants No. 2 and 3 have possession. In para 4 of written statement, the measurement mentioned in the map by red ink is also disputed.

(2.) THE petitioner/plaintiff filed an application under Order 26 Rule 9 CPC with a prayer that the lands situated in survey No. 1269 be investigated by appointing a Commissioner. The prayer was opposed by filing reply. The court below by impugned order dated 14.8.2012 disallowed the application, which is under challenge in this petition filed under Article 227 of the Constitution.

(3.) PER contra, Shri Ashish Saraswat, learned counsel for the respondents No. 2 and 3 supported the order and submits that an application under Order 26 Rule 9 CPC cannot result into an order by the court for the purpose of collecting evidence. He supported the order of the court below by placing reliance on, 2002 (1) MPWN SN 105 (Chunnilal v. Ramchandra) and : 2004 (2) MPHT 14 (Ashutosh Dubey and another vs. Tilak Grih Nirman Sahakari Samiti Maryadit, Bhopal and another). In addition, he submits that the petitioner can take assistance of Section 129 of MP Land Revenue Code for the purpose of actual measurement of land.