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2020 Supreme(MP) 114
MADHYA PRADESH HIGH COURT BENCH AT INDORE
Vivek Rusia, J.
Chief Municipal Officer - Appellant
Versus
Muhammad And Others - Respondents
Second Appeal No. 17 of 2003
Decided On : 03-03-2020
T.N. Singh, Advocate, Hemlata Gupta, Advocate, M.A. Bohra, Advocate
The main legal point established in the judgment is that the appointment of a commission under Order 26 Rule 9 CPC should be limited to cases involving demarcation and encroachment, and parties must establish their case through evidence before seeking such appointment.
Headnote:
encroachment - Civil Suit - Order 26 Rule 9 CPC - [1955 Industries and Business, State of M.P. - 2002 3 LAWS(KAR) 55 - 2004 3 MPLJ 213 - 2015 4 MPLJ 270 - 2008 8 SCC 671 - 1975 MPLJ 801 - 2011 2 MPLJ 576] - The court discussed the issue of encroachment on government land and the application of Order 26 Rule 9 CPC. The court held that the defendants failed to prove encroachment and rejected the application for appointment of a commission under Order 26 Rule 9 CPC. The judgment referenced various legal provisions and interpretations related to the appointment of a commission for local investigation.
Fact of the Case:
The plaintiffs filed a suit for permanent injunction against the defendant, alleging encroachment on government land. The trial court decreed the suit in favor of the plaintiffs, which was affirmed by the first appellate court. The defendant appealed to the High Court on substantial questions of law.
Finding of the Court:
The court found that the defendants failed to prove encroachment by the plaintiffs and rejected the application for appointment of a commission under Order 26 Rule 9 CPC. The court upheld the lower courts' decisions and dismissed the appeal.
Issues: The issues involved the alleged encroachment on government land, the application of Order 26 Rule 9 CPC, and the rejection of the application for appointment of a commission.
Ratio Decidendi: The court held that the defendants must establish their case through evidence before seeking the appointment of a commission for local investigation. The court also emphasized that the scope of Order 26 Rule 9 CPC is limited and should be invoked only for demarcation and encroachment issues.
Final Decision: The appeal was dismissed, and the lower courts' decisions in favor of the plaintiffs were upheld.
JUDGMENT
Vivek Rusia, J. - This is an appeal filed by the defendant against the judgment and decree dated 30.11.2000 passed in Civil Suit No. 280-A/1996 by the Civil Judge, Class II Garoth affirmed by judgment dated 20.09.2002 passed by the Additional District Judge, Garoth in C.A. No. 1-A/2001.
2. Facts of the case in short are to the effect:
The respondent no.1, 2 and 3 being plaintiffs filed a suit for permanent injunction against the present appellant and the State of M.P. being aggrieved by the notices dated 17.08.1995 and 23.08.1995 issued by the defendant no.1.
According to the plaintiff, they are real brothers and residing jointly in Village Shyamgarh Mandi. They are owner and occupier of a piece of land which was given on lease by the Department of Industries and Business, State of M.P. vide Exhibit P-5(c) dated 04.11.1955 for the purpose of construction of petroleum godown. The plaintiffs have established petroleum and diesel retail outlet after obtaining permission from the then Gram Panchayat, Shyamgarh. The plaintiffs are running retail outlet in the name of M/s Haji Mulla Hibtullahbhai Khanbhai & Sons. In the year 1994-95, plaintiffs applied in the nagar Parishad for permission to construct office building. That vide order dated 17.11.1994, Parishad has granted the permission. Against the aforesaid permission, appeal was preferred before the Collector, Distt. Mandsaur by one complainant and initially stay was granted by the Collector. Later on, the said appeal was dismissed by order dated 10.03.1997 vide Exhibit P-14(c) and the order dated 17.11.1994 of building permission has been affirmed. After obtaining permission, appellant has constructed the outlet on the aforesaid suit land.
3. According to the plaintiffs, the Tehsildar issued notices dated 17.08.1995 and 23.08.1995 alleging that plaintiffs have encroached the Government land for construction of office building which gave them cause of action for filing a suit for permanent injunction against appellant and respondent no.4.
4. After receipt of summons, the present appellant filed written statement alleging that the plaintiffs have encroached the government land bearing Survey No. 424/1 and constructed a new sales office. The defendant no.1 admitted the building permission dated 17.11.1994 issued in favour of the plaintiffs. On the basis of complaint made by Amarnath, a notice dated 17.08.1995 was issued to the plaintiffs to submit documents pertaining to the ownership. The defendant no.2, State Government has also filed written statement by submitting that the land bearing Survey No. 424/1 is a Nazool Land and the remaining averments are not related to the defendant no.2.
5. On the basis of pleadings, the trial Court framed five issues for adjudication. The plaintiff examined Mohd Hussain as PW-1 and got exhibited 14 documentary evidence as Exhibit P-1 to P-14. The defendant no.1 examined Mohanlal Patwari and got exhibited the Khasra Panchshala of the year 1981.
6. After appreciating the evidence came on record, vide judgment and decree dated 30.11.2000, learned Civil Judge has decreed the suit in favour of the plaintiffs by restraining defendants to interfere into the peaceful possession and not to remove the construction by illegal manner. While decreeing the aforesaid suit, learned Civil Judge has also held that the plaintiffs were allotted the land by the Government and thereafter they constructed the Petrol and Diesel Retail Outlet after due permission. The defendants have failed to prove that the plaintiffs have encroached over the government land. The building permission has been approved by the Collector vide order dated 10.03.1997 Exhibit P-14. Hence, the plaintiffs are entitled for the relief of permanent injunction.
7. Being aggrieved by the aforesaid judgment and decree, the defendant no.1 preferred the first appeal No. 1-A/2001 and the State Government preferred the F.A. No. 2A/2001. Vide judgment dated 20.09.2002, the first appellate Court has
