SARJU PRASAD CHOUDHARY Vs. BINDESHWARI PATEL

JUDGEMENT

(1.) This petition has been filed by the petitioners/ defendants under Article 227 of the Constitution of India against the order dated 9.8.2016 passed by the First Civil Judge, Class I, Katni whereby the petitioners' application under Order 39, Rule 7 read with Order 26, Rule 9 of C.P.C. for appointment of Commissioner for verification of the disputed property has been dismissed.

(2.) The case of the petitioners/ defendants is that the suit has been filed by the sole respondent/plaintiff Bindeshwari Patel for permanent injunction in respect of the disputed property situated at Patwari Halka No. 41/44 bearing survey No. 708/4 at Katni as the aforesaid land has been purchased by the plaintiff from one Vinita Tiwari vide registered sale deed dated 1.11.2013. The suit has been filed by the plaintiff on apprehension that the petitioners/defendants, on the basis of an agreement allegedly entered into with the said seller Vinita Tiwari in respect of the same land are trying to encroach upon their land. Hence, to restrain them from entering into his land, the suit has been filed.

(3.) In the aforesaid suit, the petitioners have already filed their written statement and have also filed an application under Order 39, Rule 7 read with Order 26, Rule 9 of C.P.C. for appointment of commissioner to verify as to in whose control the said land is and also on the ground that in the sale-deed which has been filed along with the suit, it is mentioned that the suit land falls after survey No. 571 which is situated within a distance of one kilometer from Katni- Shahdol road whereas in the revenue map filed by the defendants, depicting both the survey numbers, namely 708/4 as also survey No. 571, both the lands are situated at a reasonable distance and hence, the contention of the learned counsel for the petitioners is that under these circumstances, it is necessary to appoint Commissioner, who can verify the boundaries of the disputed land as the petitioners have also disputed the boundaries of the disputed property in their written statement. So far as the verification of control of the land is concerned, the learned counsel has conceded that he is not pressing for such verification but has pressed this petition on the ground of demarcation of boundaries only.