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IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BENCH
DEEPAK KUMAR AGARWAL, J.
Mahesh Kumar S/o Shyam Singh – Appellant
Versus
Vishambhar S/o Kunwar Pal – Respondent
Misc. Appeal No. 500 of 2014
Decided On : 17-08-2022
demarcation - land dispute - Order 26 Rule 9 CPC, M.P. No. 788/2010, AIR 1975 All. 406, M.A. No. 2576/2021, 1997 (1) MPWN 128 - The court discussed the need for demarcation of disputed land and the application of Order 26 Rule 9 CPC. It referenced various legal provisions and judgments to support the decision to allow the application for demarcation.
Fact of the Case:
The appellants filed a civil suit for permanent injunction against the respondents regarding a disputed land. The trial court decreed the case in favor of the appellants, but the appellate court remanded the case for further demarcation.
Finding of the Court:
The court found that without demarcation report regarding the situation of the disputed land, no relief could be granted. The appellate court rightly allowed the application under Order 26 Rule 9 CPC filed by the defendant.
Issues: Dispute regarding demarcation of the disputed land, application of Order 26 Rule 9 CPC, and possession of the suit land.
Ratio Decidendi: The need for demarcation of disputed land and the application of Order 26 Rule 9 CPC were crucial in reaching the decision.
Final Decision: The present appeal stands dismissed.
The legal judgment emphasizes the crucial importance of proper demarcation of disputed land in property disputes. The court held that without a demarcation report clarifying the situation and boundaries of the land in question, it is not possible to grant relief or make a definitive decision regarding ownership or possession (!) (!) .
The application of Order 26 Rule 9 CPC was deemed appropriate in this context, as it allows the court to appoint a commissioner for local inspection and demarcation of the land, which is essential for resolving disputes involving unclear or disputed boundaries (!) (!) . The court underscored that local inspection and demarcation are necessary steps before any substantive relief can be granted in property disputes, especially when the land boundaries are contested or ambiguous.
Furthermore, the judgment clarified that the appellate court rightly remanded the case for proper demarcation, recognizing that the absence of a demarcation report hampers the ability to determine the true extent and location of the disputed land (!) . The court also highlighted that the appointment of a commissioner for demarcation under Order 26 Rule 9 CPC is within the court’s authority, particularly when the case involves land boundary issues that require local inspection.
In summary, the judgment establishes that in property disputes involving disputed land, the court must ensure proper demarcation through appropriate application of procedural provisions, notably Order 26 Rule 9 CPC, before granting relief. The absence of such demarcation can be a decisive factor in the dismissal of claims or appeals related to land ownership and possession (!) (!) .
JUDGMENT :
DEEPAK KUMAR AGARWAL, J.
1. This Miscellaneous Appeal has been field by appellants aggrieved by the order passed in Civil Appeal No. 7-A/2014 by Second Additional District Judge Joura District Morena on 12.05.2014 by which judgment passed by Second Civil Judge Class II Joura in Civil Suit No. 8-A/2012 on 07.02.2014 was set-aside and matter was remanded back to the trial Court for getting the disputed property demarcated by Superintendent, Land Record Morena and thereafter pass appropriate judgment.
2. In brief facts of the case are that appellants have filed a civil suit for permanent injunction against respondents in regard to the land situated at Mouja Sankara Pargana Survey No. 5 the area of which was 4 bigha 3 viswa out of which 1 bigha 13 viswa was acquired for canal and remaining area is 2 bigha and 10 viswa. The Joura-Runipur road passed through survey No. 5 due to which the disputed property is in two parts. 8 Biswa portion of the land is situated in the north side towards Narua and Road. Plaintiff on 27.08.2010 purchased 8 viswa land situated on north side towards Narua and Road of Survey No. 5 area 2 bigha 10 viswa from respondents and took possession over the said land. Adjacent to the aforesaid land, land of respondents is situated. They want to pass tractor from the aforesaid 8 viswa land of plaintiff despite they are having way from Ranipur Road. The aforesaid part of land 8 viswa has been given by plaintiff on batai to Vidyaram. Thereafter on 26.09.2011, respondent tried to pass his tractor from the aforesaid land for which bataidar Vidyaram objected due to which they started abusing him. Thereafter, petitioner lodged a report at Public Meeting on 27.09.2011 with SDO Joura. Tahsildar Joura submitted an inquiry report on the same day due to this they had to file a civil suit for permanent injunction.
3. Respondents denied plaint averment of plaintiff and stated that land which was purchased by plaintiff on 27.08.2010 is the land of irrigation department, boundaries of which are wrongly recorded in revenue records. Proposed respondents had not right to sell the aforesaid disputed land. Plaintiffs are in possession of disputed 8 viswa land. In the aforesaid land, during rainy season water accumulates due to which during rainy season nobody can go through from the aforesaid land. In the dry season, water is evaporated. They use the aforesaid land for the purpose of way. Regarding aforesaid disputed land one Narendra Kumar Tyagi President, Irrigation Department had filed an application for correction in revenue record and for separate partition due of which one revenue case No. 01/11-12 was registered. Thereafter on 13.08.2012, order was passed by which aforesaid land was mutated as land belongs to Government Chambal Canal.
4. Learned counsel for the appellants submitted that learned trial Court rightly decreed the case coming to the conclusion that disputed land 8 viswa is in the ownership and in possession of appellants. Despite this, learned Appellate Court remitted back the case for further demarcation.
5. Learned counsel for the respondent submitted that there is a dispute regarding demarcation. Learned Appellate Court rightly remitted back the case for proper demarcation of the disputed land. Hence no interference is called for.
6. It is not disputed that petitioner/plaintiff had purchased the land 8 Biswa from formal respondent and two others by registered sale deed on 27.08.2010 in Rs.70400/- situated at Mouja Sankara Pargana Joura Survey No. 5 total area 2 Bigha 10 Viswa and got possession. Afterwards one Virendra Singh Tyagi, President Irrigation Department has submitted an application before Tahsildar for doing Batankan of irrigation land acquired i.e. 1 Bigha 13 Viswa which was allowed.
7. Aggrieved by the aforesaid order, petitioner preferred an appeal before SDO Joura. SDO Joura found that Tahsildar has not properly assessed the case and remitted back for proper adjudication. As per judgment of Appel
The central legal point established in the judgment is the requirement for demarcation of disputed land and the application of Order 26 Rule 9 CPC.
Boundary disputes necessitate the appointment of a local Commissioner for clarity, ensuring courts fulfill the legal requirement of definitive evidence before adjudication.
The appellate court can appoint a commissioner for local inspection without remanding the case, determining property disputes requires factual evidence including boundary verification.
The central legal point established in the judgment is the requirement for establishing ownership through demarcation or otherwise in cases of disputed land ownership.
Appellate court cannot entertain application under Order 26 Rule 9 for fresh demarcation to test trial court's rejection of existing defective report; sustainability of trial court's reasoning to be ....
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