The central legal point established in the judgment is that the issue of encroachment could not have been decided without the appointment of a Commissioner.

This appeal is by the plaintiffs. A Bench of this Court had formulated the following substantial questions of law :-

1. “Whether Courts below have committed error in dismissing the suit of the appellant taking into consideration the other suit filed by the deceased defendant Soma Sau against the then recorded Bhoomiswami Digamber and Yuvraj for declaration and injunction claiming the right under the provision of M.P. Vas-sthan Dekhalkar (Bhumiswami Adhikaron Ka Pradan Kiya Jana) Adhiniyam, 1980 ?

2. Whether the first appellate Court has committed error in dismissing the application filed by the appellant under Order 41 Rule 27 of CPC for taking the demarcation report on record ?”

Today during the course of hearing, the following additional substantial question of law is framed :

“Whether the dispute pertaining to encroachment could have been decided by the Courts below without appointment of the Commissioner ?”

2. Facts giving rise to filing of the appeal, briefly stated, are that the plaintiffs filed a suit on the ground that they purchased the suit land admeasuring 0.75 acres forming part of Khasra No.205/3 vide registered sale-deed dated 6.7.1990 from Digamber and Yuvraj for a consideration of Rs.34,000/-. On the southern side of the suit land, the land of the defendants bearing Khasra No.205/13 is situate. The defendants sometime in January, 1991 encroached the land admeasuring 2 decimal, which belongs to the plaintiffs and thereafter, raised construction on the same. The plaintiffs thereupon filed a suit seeking the relief of possession and damages .

3. The defendants filed the written statement, in which inter-alia it was pleaded that they had purchased the land bearing Khasra No.205/13 admeasuring 2 decimal from one Rayabai and were placed in possession. Thereafter, they purchased part of lands bearing Khasra No.205/21 and 205/22. It was further pleaded that the defendants have raised the construction on the land belonging to them and the suit filed by the plaintiffs is barred by limitation.

4. The trial Court vide judgment and decree dated 12/5/2000 dismissed the suit filed by the plaintiffs. The aforesaid decree was affirmed in appeal by the Lower Appellate Court.

5. Learned counsel for the appellants submitted that the dispute pertaining to encroachment could not have been decided without appointment of the Commissioner. During the pendency of the appeal, the appellants had filed the demarcation report with an application under Order 41 Rule 27 of the Code of Civil Procedure, however, the same was rejected by the Lower Appellate Court. On the other hand, learned counsel for the respondents submitted that the judgment and decree passed by the Courts below is perfectly just and legal and does not call for any interference by this Court in exercise of powers under Section 100 of the Code of Civil Procedure.

6. I have considered the respective submissions made by learned counsel for the parties. From perusal of the pleadings of the parties, it is evident that the issue which is involved in the suit as to whether the land in question forms part of the land bearing Khasra No.205/3 or Khasra No.205/13, the aforesaid dispute could not have been decided without appointment of the Commissioner. It is well settled in law that the issue relating to encroachment cannot be decided without appointment of the Commissioner. [See : Durga Prasad Vs. Parveen Foujdar and Other , 1975 M.P.L.J., 801]. It is equally well settled legal proposition that the Courts itself suo -moto can appoint the Commissioner in absence of such prayer made by the parties. [See : Mangilal and another Vs. Gaurishankar and another, AIR 1992 MP 309]. In view of aforesaid enunciation of law, the dispute with regard to encroachment could not have been decided without appointment of the Commissioner by the Courts below.

7. For the aforesaid mentioned reasons, the additional substantial question of law framed by this Court is answered in negative and in favour of the