PUNJ LLOYD LIMITED THR. Vs. VIVEK TRIPATHI

JUDGEMENT

(1.) This Misc. Petition under Article 227 of the Constitution of India has been filed challenging the order dated 14.2.18 passed by the Third Civil Judge, Class II, Morena, whereby the learned Civil Judge has rejected the application under Order 26, Rule 9 CPC.

(2.) A suit for declaration and permanent injunction has been filed by the petitioner, who is plaintiff before the trial Court, alleging that petitioner-Punj Loyd Ltd. is owner and in possession of the land contained in Patwari Halka No.55 survey No.431 measuring 0.670 hectares at Tahsil and Distt. Morena. It is also owner and possessor of the land measuring 0.160 hectares contained in survey No.432, 0.500 hectares contained in survey No.433, 0.400 hectares in survey No.435 and 0.500 hectares contained in survey No.436. It is further mentioned that old survey number of survey No.432 is 349 and earlier this land was in the ownership and possession of Ramdayal son of Mahasundara resident of Noorabad. Ramdayal had sold said land vide registered sale-deed dated 25.9.89 in favour of present petitioner and handed over vacant possession of the said land in favour of the present petitioner. It is further submitted that the shape of the land contained in survey No.432 is triangular and is situated in front of land of defendant No.1 in survey No.446 i.e. one of the ends of the land contained in survey No.432 meets land contained in survey No.446 on the east side. The land of defendant No.1 contained in survey No.446 measuring 0.410 hectares and one of the end is situated at Agra Bombay Road. It is further submitted that defendant No.1 is trying to forcefully take possession of part of the land contained in survey No.432, therefore, plaintiff had moved an application before the Naib Tahsildar, Bamore, on 16.1.15 under the provisions of Section 129 of M.P.L.R.C. seeking demarcation but demarcation has not been carried out by the revenue authorities, therefore, cause of action had arisen on 1.8.15 and suit was filed for declaration and injunction. Thereafter, written statement has been filed by defendant No.1 and he has denied any kind of encroachment and has further mentioned that there is no triangular piece of land after construction of national highway which is a road measuring 60 ft. x 60 ft. on east side of the divider and there is no common point between survey No.446 and survey No.432 (old survey number 349).

(3.) Petitioner had filed an application under Order 26, Rule 9 read with section 151 CPC alleging encroachment by defendant No.1, and therefore, challenging the ex-parte demarcation Ex.D/7 carried out by the revenue authorities as a basis for appointment of Commissioner. Reply was filed and allegations in this application have been denied and it has also been mentioned that plaintiff had filed application to the similar effect on 4.6.16 which was rejected by the Court on 27.8.16 against which no proceedings were drawn in any superior Court, and therefore, order dated 27.8.16 has attained finality. Therefore, no indulgence can be shown on second application. It is also mentioned that demarcation can be carried out only by the revenue Court and it was carried out in presence of petitioner's representative Kaptan Singh and he has signed on demarcation Panchnama and Kabja receipt and this intimation is available with the authorized officer of the company namely Ghanshyam Singh. It is also mentioned that such demarcation report has not been challenged by the company before any superior Court, therefore, this application deserves to be dismissed and be dismissed.