2002 Supreme(MP) 419

K.K. Lahoti, J.
Tara Singh v. Shri Parshvanath Digember Jain Mandir Pisanhari Madhiya Trust
Civil Revision No. 2710 of 2000 (J); Decided on 9.4.2002.

Headnote:Civil P.C., 1908 -- O.26 R.9 -- fact of encroachment cannot be determined in the absence of agreed map -- Commission for local inspection is necessary.

       

        flfoy izfdz;k lafgrk] 1908&vk- 26 fu-9&vf/kdze.k dk rF; lger ud"ks ds vHkko esa vo/kkfjr ugha fd;k tk ldrk & LFkkuh; fujh{k.k ds fy, deh‘ku vko‘;d gSA

        This revision is directed against the order dated 7.11.2000 passed by Fourth Civil Judge Class II, Jabalpur by which the learned trial Court has directed for appointment of Commissioner for ascertaining the exact location of the encroachment, which is seriously disputed by the defendant. He submits that the Court below has wrongly appointed Commissioner at this stage, while the plaintiff has to prove issue No.2 which relates to title of plaintiff.

       

        The defendant-applicant in the written statement in para 4 has denied title of the plaintiff and stated that he has not encroached over the land of the plaintiff. The trial Court has framed issue No.3 which relates to encroachment over disputed land. The learned counsel submits that until plaintiff proves his case by leading evidence in respect of issue Nos. 2 and 3, commission cannot be issued.

       

        In this case, admittedly there is no agreed map filed by the parties.

       

        To ascertain the exact location of the alleged encroachment, which is stated to be 12x30, it is necessary to issue commission for local inspection. This aspect has been considered by the Division Bench of this Court in the case of Durga Prasad v. Parveen Foujdar and others, 1975 JLJ 340 and has held as under:

       

        "In cases where there is a dispute as to encroachment, the fact whether there is such an encroachment or not cannot be determined in the absence of an agreed map; except by the appointment of a Commissioner under Order 26, rule 9 of the Code of Civil Procedure., In view of this, the trial Court has rightly issued the commission for ascertaining the exact location of alleged encroachment. In view of this, I find no merit in this revision. Consequently, this revision is dismissed with no order as to costs.