Rejection of repeated applications under Order 26 Rule 9 of CPC is upheld due to prior dismissals and lack of new evidence.

Order on Board

27 . 01.2025

1. The petitioner/plaintiff has filed this petition challenging the order dated

27.01.2020 passed by the learned First Civil Judge, Class II, Bilaspur (C.G.) whereby the application moved by the plaintiff under Order 26 Rule

9 of CPC has been rejected.

2. The facts of the present case are that the plaintiff filed a Civil Suit for declaration of title, injunction and possession over land bearing survey No.

724/35, admeasuring 1260 sq. feet situated at village Juna Bilaspur, Patwari Circle No. 22, Tahsil and District Bilaspur. It is alleged in the plaint that respondent No. 1/defendant No. 1 encroached over some part of the suit land. Defendant No. 1 filed a written statement and denied the plaint averments. During the pendency of the Civil Suit, the plaintiff moved an application under Order 26 Rule 10 read with Section 151 of CPC on 10.05.2017 before the learned Court below and the same was rejected vide order dated 02.11.2017 on the ground that the plaintiff has to establish his case on his own. Thereafter, the plaintiff moved another application under Order 26 Rule 9 of CPC for the appointment of the Commissioner for the demarcation of the suit land. The learned trial court vide Order dated 06.12.2019 rejected the application on the ground that earlier, a similar application was rejected. The plaintiff moved the third application under Order 26 Rule 9 of CPC for the appointment of Commissioner and that was rejected by the learned Court below, which is the order impugned in the present petition.

3. Ms. Gunjan Tiwari, learned counsel appearing for the petitioner would submit that earlier the demarcation was conducted on the behest of the plaintiff, wherein encroachment of 660 sq. feet over suit land was found. She would further submit that after the rejection of the application moved under Order 26 Rule 10 read with Section 151 of CPC, the plaintiff moved an application for demarcation before the learned Tahsildar, Bilaspur and the demarcation was conducted by the said authority and the report was also submitted. She would also submit that according to the subsequent demarcation report, the area of encroachment is not clear. Defendant No. 1 has raised a construction over 19x23.9 sq. feet, which is in excess of the property purchased by him. It is contended that there is a dispute relating to the identification of land as well as the area of encroachment; therefore, the learned Court below ought to have allowed the application moved by the plaintiff under Order 26 Rule 9 of CPC. She would pray to allow the instant petition.

4. On the other hand, Mr. Rajesh Kesharwani, learned counsel appearing for respondent No. 1 would submit that in the present petition, the plaintiff failed to disclose the fact that earlier application under Order 26 Rule 9 of CPC was rejected vide Order dated 06.12.2019. He would further submit that on the instance of the petitioner two times the demarcation has been conducted and reports have been placed before the learned Court below. He would also submit that there was no occasion to pass an order for demarcation again. It is contended that the instant petition deserves to be dismissed.

5. Mr. Sanjeev Agrawal, Panel Lawyer appearing for the State would support the order passed by the learned Court below.

6. I have heard learned counsel appearing for the parties and perused the documents placed on record.

7. It is apparent from the pleadings and the documents placed on record that the petitioner approached revenue authorities for the demarcation twice and both times the revenue authorities submitted the demarcation reports in favour of the petitioner/plaintiff, those demarcations were not conducted pursuant to the order passed by the learned Court below. The first application under Order 26 Rule 10 read with Section 151 of CPC was moved by the plaintiff for appointment of Commissioner and that was rejected by the learned Court below vide order dated 02.11.2017. The second application un