RAMESH CHAND Vs. USHA DEVI

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution challenges the order dated 18.10.2011 passed in Case No. 6/10 whereby the application preferred by the petitioner/plaintiff under Section 151 CPC was disallowed by the Court below.

(2.) Petitioner filed a suit for declaration and permanent injunction. The relief was related to Survey No. 890. The respondents No. 1 to 3 herein filed counter claim. In the counter claim, they prayed for a relief relating to Survey No. 888, 889 890 and 891/2. Thereafter, the plaintiff filed an application under Order 26 Rule 9 CPC (Annexure P -5). In the said application, the petitioner prayed for demarcation of the land mentioned in the plaint. Another application under Order 26 Rule 9 CPC was filed by respondents No. 1 to 3 (Annexure P -4). In the said application, the respondents prayed for inspection of Survey No. 888,889,890 and 891/2. The Court below by order dated 1.4.2010 (Annexure P -6) considered the aforesaid applications preferred under Order 26 Rule 9 CPC by the plaintiff and defendants. The Court below in its detailed order directed that the report relating to Survey No. 890 be produced. Thereafter, an application under Section 151 CPC (Annexure P -7) was filed by the plaintiff on 14.7.2011. The defendants filed their reply and contended that in view of order dated 1.4.2010, it is not open to the plaintiff to file another application. The Court below by impugned order dated 18.10.2011 rejected the said application.

(3.) Shri D.D.Bansal, learned counsel for the petitioner criticized the said order. He submits that in view of plaint averments and counter claim, it is clear that there exists a boundary dispute. Accordingly, court below should not have taken a mechanical and hyper technical approach. It was also the claim of the defendants that spot inspection report should be obtained in relation to Survey Nos.888,889,890 and 891/2. He submits that in order to examine the rival claims and to determine the boundary dispute, it was necessary for the court below to issue appropriate orders for demarcation of the land in relation to all the survey numbers. He submits that this exercise is necessary to separate the wheat from chaff. Lastly, he submits that since it was the prayer made by the defendants in Annexure P/4, they have no right to object in relation to the relief claimed in applications preferred under Section 151 CPC. To bolster the aforesaid, he relied on 1983 MPWN SN 218 (Chunnilal v. Sunderlal), 1988 MPWN(2) 23 (Hari Charan vs. Ghanshyam Das), 1996 (1) MPWN SN 7 (Kiriti Bai (Smt.) v. Amrit) and 2006 RN 218 (DB) (Gajraj Singh vs. Ram Singh and others).