2024:CGHC:43304 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 970 of 2024

1. Gurmeet Singh Seere, S/o Shri Paramjeet Singh Seere, Aged About 27 Years, R/o House No.17/244 Govind Nagar, Pandri, Raipur, Tehsil District Raipur (C.G.) (Plaintiff).

2. Raunak Singh Seere, S/o Shri Paramjeet Singh Seere, Aged About 24 Years, R/o House No.17/244 Govind Nagar, Pandri, Raipur, Tehsil District Raipur (C.G.) (Plaintiff).

3. Smt. Jasminder Kaur, W/o Shri Paramjeet Singh Seere, Aged About 47 Years, R/o House No.17/244 Govind Nagar, Pandri, Raipur, Tehsil District Raipur (C.G.) (Plaintiff). ... Petitioners D J NHE IRAE AP LT AIDsDJN D21+Hi 06i E ag 0Ig RA 2:tn 5E 2i e4At 3e 8P :a .d L 01:Tl

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1. Chhattisgarh State Power DisV tre ibrs uu tis on Company Ltd., Daganiya, Raipur (C.G.).

2. Executive Engineer, Chhattisgarh State Power Distribution Company Ltd., Gudhiyari, Raipur, District Raipur (C.G.).

3. State Of Chhattisgarh, Through Collector, Raipur (C.G.). ... Respondents (Cause title taken from Case Information System)

For Petitioners : Mr. Shobhit Mishra, Advocate.

For Respondents No.1 & 2 : Mr. Mayank Chandrakar, Advocate.

For State/Respondent No.3 : Mr. G.L. Uike, P.L.

Hon'ble Shri Justice Naresh Kumar Chandravanshi

Order on Board

07/11/2024

1. Heard on admission.

2. This petition has been preferred by the petitioners under Article 227 of the Constitution of India, challenging the order dated 25.09.2024 (Annexure-P/1) passed by the 2^nd Additional Judge to the Court of 1^st Civil Judge, Senior Division Raipur, District Raipur (C.G.) in Civil Suit No.213-A/2024, whereby the trial Court has rejected the application filed by the petitioners/plaintiffs under Order 26 Rule 9 of CPC.

3. Learned counsel for the petitioners would submit that petitioners/plaintiffs have filed the civil suit (Annexure-P/2) for easementary right and permanent injunction stating inter alia that they are the owner of the agricultural land bearing Khasra Nos.181/2, 182/2, 181/4 & 182/24, area 0.3240 hectare, 0.2020 hectare, 0.324 hectare & 0.203 hectare respectively. It is further pleaded in plaint that aforesaid lands are connected to the government land, as such plaintiffs were using that government land to reach their suit land, but, some portion of that government land has been allotted to the Respondent No.1, Chhattisgarh State Power Distribution Company Limited (CSPDCL) by the government, as such, the road, which was used by the petitioners/plaintiffs to commute their land has been blocked and there is no other road to reach the suit land. Therefore, petitioners/plaintiffs filed the application before the trial Court under Order 26 Rule 9 of CPC for issuance of commission, so that, need of plaintiffs can be examined and proper report may be submitted, but that application has been rejected by the trial Court. He would further submit that learned trial Court has dismissed the application supposing that demarcation has been sought for by the plaintiffs, whereas demarcation has not been sought for in aforesaid application, rather actual position of the suit land and adjacent land, particularly road, which was used by the petitioners/plaintiffs and non-availability of alternative road was sought to be enquired by issuing the commission. Thus, order impugned has been paased in wrong premise, therefore, order impugned suffers from illegality and perversity. Further, he submits that Co-ordinate Bench of this High Court in WP(227) No.821/2019 (Phoolchand Asra Versus Nagar Palika Nigam Raipur and Others) vide Order dated 09.09.2024 has held in para 10 that court itself can exercise its power under Order 26 Rule 9 of CPC, in order to elucidate the disputed fact, and on the question of encroachment and location/identification of land, therefore, learned counsel for the petitioner submits that impugned order may be set aside and application (Annexure-P/4) under Order 26 Rule 9 of CPC filed by the petitioners/plaintiffs may be allowed.

4. Per Contra, learned counsel appe