ANGOORI DEVI Vs. RAMESH AND OTHERS

JUDGEMENT

(1.) Petitioner has filed this petition under Article 227 of Constitution of India being aggrieved by the order dtd. 4/5/2016 passed by the Court of Second Civil Judge, Class-II, Morena whereby an application filed by the plaintiff under the provision of Order 26 rule 9 read with Sec. 151 of CPC has been rejected only on the ground that plaintiff has filed the said application for the demarcation merely to collect the evidence and she is required to stand on her own legs and prove her case.

(2.) Learned counsel for the petitioner submits that petitioner's husband had purchased the said land from one Harilal s/o Ghansu vide sale deed dtd. 14/9/2007 situated at Village Higona Khurd out of Survey No.2624 min 2 rakwa admeasuring 0.355 hectare, i.e, 1 bigha 14 biswa. In the sale deed itself, boundaries of the property which was purchased by Soneram s/o Ghansu is mentioned. He submits that respondent No.7 Laxman Singh Gurjar had purchased some property from Naresh s/o Soneram vide sale deed dtd. 28/6/2012 and in this sale deed though it is mentioned that land contained in Survey No.2624/1/15 admeasuring 0.067 hectare and land contained in Survey No.2625/2 admeasuring 0.006 hectare totaling 0.073 hectare was purchased but there is a dispute of the boundaries inasmuch as none of the boundaries of the property as was sold by Naresh s/o Soneram in favour of respondent No.7 has been mentioned and therefore in the garb of such discrepancy in the sale deed dtd. 28/6/2012, respondent No.7 is trying to encroach the land of the petitioner and is trying to push her towards the Government land which will be illegal. Therefore, she made an application for seeking appointment of commissioner for demarcation of her property.

(3.) Learned counsel for the petitioner has relied on the judgment of Supreme Court in case of Shreepat v. Rajendra Prasad and others, as reported in 2000(6) Supreme 389, and submits that when defendant disputing identity of the property then Court should have got identity of property established by issuing survey commission and accordingly decree passed without issuance of commission was set aside. Similarly, petitioner has placed reliance on the judgment of this Court in case of Madanlal v. Devilal, as reported in 1996(1) MPWN 9, wherein is has been held that when there is dispute as to area, boundaries, location and possession same can be decided by appointing commission when document of title is on record. Placing reliance on such judgments, learned counsel for the petitioner submits that since there is document of title of the petitioner on record but the dispute is in regard to boundaries and location inasmuch as sale deed which was executed by Naresh s/o Soneram in favour of the respondent No.7 does not disclose any boundaries to identify that property rendering petitioner's property vulnerable, the Court below erred in dismissing the application under Order 26 rule 9 of CPC.