ASHOK KUMAR @ SATYANARAYAN SONI Vs. LAXMI NIDHI CHOURASIYA

JUDGEMENT

(1.) The petitioner has filed the present petition under Article 227 of the Constitution of India challenging the order dated 08.08.2016 passed by IVth Civil Judge Class-I, Rewa in Civil Suit No.81A/2016, thereby rejecting the application preferred by the petitioner under Order 26 Rule 9 of the Code of Civil Procedure (hereinafter in short referred to as "the Code").

(2.) The petitioner has filed a civil suit for declaration and permanent injunction in respect of the land bearing Khasra No.65/5/Ka having area 1250 sq.ft. and land out of Khasra No.65 area 425 sq.ft. situated village, Khaira, Patwari Circle Nipaniya, Tahsil-Huzur, District-Rewa. The suit was filed on the ground that the defendant No.4 Govind Prasad Patel had sold the land admeasuring 3000 sq.ft. out of Khasra No.65 by a registered sale-deed dated 22.09.1982 to one Bhaiyalal Soni. Likewise, the defendant No.4 had further sold adjoining land out of Khasra No.65 area 1250 sq. ft. by registered sale deed dated 05.08.1983 to Bhaiyalal Soni. The aforesaid lands purchased by Bhaiyalal Soni were recorded in revenue records. In both the registered sale-deeds, it is specifically mentioned that 5 ft. road on the northern side has been given by the defendant No.4 out of is own land as 'approach road'.

(3.) Bhaiyalal Soni vide sale-deed dated 05.02.1991 has sold the land admeasuring 1250 sq.ft. to the plaintiff. In both the aforesaid sale-deeds 5 ft. road on the northern side is specifically mentioned. The other 3000 sq.ft of the land which was purchased by Bhaiyalal Soni was sold to Smt. Kanya Singh by registered sale-deed dated 22.04.1991. Defendants No.1 and 2 after purchase of aforesaid land started raising construction over the road and also on the land which the plaintiff purchased vide registered sale-deed dated 05.02.1991. Likewise, the defendant No.3 also started raising construction over the said land, which was part of land belonging to the plaintiff. The plaintiff has filed the present civil suit for declaration and permanent injunction. During pendency of the said civil suit, the plaintiff has filed an application under Order 26 Rule 9 of the Code for demarcation of the land. The defendants No.1 to 3 have filed the reply to the said application and the defendants No.1 and 2 has also filed an application under Order 26 Rule 9 of the Code for demarcation, which they have purchased by a registered sale- deed dated 13.10.2005. The trial Court vide order dated 08.08.2016 dismissed both the applications filed by the petitioner as well as by the defendants No.1 and 2 on the ground that the plaintiff cannot be permitted to collect the evidence under Order 26 Rule 9 of the Code. Being aggrieved by that order, the petitioner has filed the present petition.