BADAN SINGH AND ORS Vs. SAHESH AND ANR

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution challenges the order dated 24.11.2009 (Annexure P/1) whereby the application preferred by petitioners / defendants under Order 26 Rule 9 C.P.C. is rejected by the court below.

(2.) The respondent / plaintiff filed a suit for injunction contending that the land bearing survey No. 1897 is owned and possessed by him. Defendants filed their written statements. The plaint averments were denied. The existence of a road between survey No. 1896 and 1897 was denied. It is urged that a 100 feet road is situated between survey No. 1897 and 1900. The petitioner filed an application under Order 26 Rule 9 C.P.C. (Annexure P/4). The plaintiff filed its reply.

(3.) Shri Nakul Khedkar, Advocate for the petitioner, criticized the order of the court below by contending that court below should have allowed the said application. Reliance is placed on (Durga Prasad Vs. Praveen Fauzdar and Ors., 1975 MPLJ 801), ( Shreepat Vs. Rajendra Prasad and Ors., 2000 6 SCC 389), (Harayana Waqf Board and Shanti Sarup and Ors., 2008 4 MPHT 306) and ( Harayana Waqf Board Vs. Shanti Swarup and Ors., 2008 8 SCC 671 ). It is urged that dispute being a boundary dispute and in absence of any agreed map, court below should have allowed the said application.