Order on Board

06.11.2023

1) This petition has been filed against the order dated 26.08.2021 passed by the XIVth Civil Judge Class-II Durg, District- Durg in Civil Case No.195 of 2017 whereby the application moved by the petitioner under Order 26 Rule 9 of the CPC has been rejected.

2) Facts of the present case are that a civil suit was filed by the petitioner for declaration of title and permanent injunction in respect of land bearing Survey No.282/7 (New Survey No.3316) ad-measuring 0.030 hectares, Plot No.101, total area 2820 sq. ft. situated at village Kohka Bhilai, Patwari Circle No.19, Revenue Circle Durg, District Durg on the ground that the plaintiff had purchased the above-stated land through a registered sale deed on 05.02.1992 from Mrs. Sharda Vishwanath. Defendant No.1 filed the written statement and stated that the suit land was purchased by him through a registered sale deed on 10.09.2015 and he is in possession and raising construction over it.

3) Learned counsel for the petitioner would submit that the order dated 26.08.2021 passed by the learned Court below is contrary to the law. He argues that vide registered sale deed dated 05.02.1992 the petitioner/plaintiff purchased the suit property from Mrs. Sharda Vishwanath thereafter, he was in peaceful possession of the suit land and got his name mutated in the Revenue Records and later, he raised construction over the suit land. He further argues that the defendant party took advantage of his absence, and raised illegal construction on the plot of the petitioner. Thereafter, the petitioner moved an application under Order 26 Rule 9 of the CPC for demarcation of the suit land and later on, he got to know that his plot was resold to the defendant party by legal heirs of the original seller of the plot but the learned court below without taking into consideration these facts, wrongly came to conclusion that the petitioner ought to approach revenue authorities for the purpose of demarcation under Section 129 of the Chhattisgarh Land Revenue Code (for Short, CGLRC) and rejected the application; thus, he would pray that the order impugned may be set-aside and the application under Section 26 Rule 9 of the CPC may be allowed.

4) On the other hand, learned counsel for respondents No.1 and 8, would submit that the plaintiff has sought relief for declaration of title and permanent injunction over survey No.3316 ad-measuring 2820 sq. ft. plot No. 101. He would further submit that as the petitioner has filed a civil suit for permanent injunction, he should have approached the civil court after obtaining the due demarcation report and such application can be moved before the concerned revenue authorities under Section 129 of the CGLRC. He would also submit that the evidence cannot be collected in the garb of Order 26 Rule 9 of the CPC, therefore, such an application is not maintainable and the learned court has rightly rejected the application.

5) Learned counsel appearing for the State would oppose the submission made by the learned counsel for the petitioner and endorse the arguments advanced by counsel for respondents No.1 and 8.

6) I have heard learned counsel for the parties and perused the documents present on the record.

7) The Hon'ble Apex Court in the case of M/s. Garment Craft versus Prakash Chand Goel reported in (2022) 4 SCC 181 in paras 15 to 17 held as under:-

"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be su