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SUNITA YADAV
Jaishri – Appellant
Versus
Mandir Ganpati Thr. Pujari – Respondent
ORDER
1. Present misc. petition under Article 227 of Constitution of India has been filed against the order dated 8.3.2019 in Civil Suit No. 102-A/2018 by the Civil Judge, Class-II, Mungawali, District Ashoknagar, whereby, application filed by the respondent/defendant under Order 39 rule 7 of CPC has been allowed.
2. The brief facts leading to filing of this petition are that petitioner/plaintiff filed this instant Civil Suit seeking declaration of title and permanent injunction. It is pleaded by plaintiff that she purchased the property of Survey No. 928 Min 2 ad-measuring 1168.2 sf vide registered sale deed dated 25.7.2016 and further in the same survey number another area of 236.25 sq. feet has been purchased vide registered sale deed dated 9.3.2017.
3. It is submitted that the mutation in respect to above land was duly accepted by the Authorities and her name was recorded in the Revenue Records. It is pleaded in the plaint that on 20.9.2018, the plaintiff went to the spot to raise the construction on the disputed land, but she was obstructed by the defendants, therefore, instant suit has been filed.
4. Defendant No. 1 filed the written statement and admitted the plaint pleadings.
5
The court ruled that an application for appointing a survey commissioner must demonstrate necessity, which was not established in this case, leading to the setting aside of the trial court's order.
The provisions of Order 26 Rule 10-A of CPC cannot be used as a tool to create evidence in favor of the parties. Local investigation or scientific/technical report is not necessary for elucidating an....
The discretionary nature of powers under Order 26 Rule 9 of CPC and the limited scope for entertaining a petition under Article 227 of the Constitution of India.
The appointment of a Civil Court Commissioner under Order XXVI Rule 9 is essential in boundary disputes to ascertain possession and clarify any allegations of encroachment.
The court affirmed that a local commissioner cannot be appointed for collecting evidence as it improperly delegates judicial authority, which violates the principles of adjudication.
The Court emphasized the importance of correctly applying the provisions of the Code of Civil Procedure and set aside the impugned order due to misapplication of the relevant provisions.
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