IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VISHAL MISHRA th ON THE 5 OF NOVEMBER, 2024 MISC. PETITION No. 2733 of 2024 ASHOK CHATURVEDI Versus SHAHJAHAN KHAN AND OTHERS Appearance:

Ms.Tanyaa Manucha - Advocate for the petitioner.

ORDER Assailing the order dated 25.04.2024 (Annexure P/5) passed by II Civil Judge Senior Division Sirmour, District- Rewa (M.P.) dismissing the application under Order 26 Rule 9 of C.P.C., the present petition has been filed.

It is the case of the petitioner that a civil suit has been filed seeking declaration and permanent injunction and for setting aside the sale deed dated 05.02.2016 with respect to Khasra No.28678/A area 0.60 acres to be declared as null and void.

Notices being issued and written statement was filed on 05.04.2023 along with set off under Order 8 Rule 6(a) of C.P.C. further claiming set off permanent injunction and denied all claims of the petitioner. Petitioner moved an application under order 39 Rules 1 & 2 C.P.C. which was allowed by the learned trial court directing the respondents not to interfere in the disputed land. The petitioner is in possession since 2005 i.e. after executing the sale deed in favour of the present petitioner/plaintiff but despite of the Signature Not Verified Signed by: SHALINI aforesaid, after a lapse of 17 years suppressing the aforesaid fact, the land was again been sold in favour of respondent no.2 by the respondent no.1. When the aforesaid fact came to the knowledge of the petitioner , he immediately filed a civil suit before the learned trial court. As there is a dispute with respect to the possession of the property in question, therefore, an application under Order 26 Rule 9 of C.P.C. was filed seeking spot inspection. It is argued that the learned trial court rejected the application on the ground that adjudication under Order 26 Rule 9 of C.P.C.

cannot be considered for collection of evidence. Hence this petition.

It is argued by the counsel for the petitioner that there is a dispute with respect to possession of the property in question. The said disputed fact can only be ascertained by duly appointed Commissioner to see that who is in possession of the disputed property. There is no other source to ascertain the fact that who is in possession of the property in question, therefore, the application should have been allowed.

Heard the counsel for the petitioner and perused the record.

The law with respect to the Order 26 Rule 9 of C.P.C. is settled by the Hon'ble Supreme Court in large number of cases. In the case of Loknath Gautam vs. State of M.P. and others reported in 2018 SCC Online MP 600 has held as under:-

"20. In the considered opinion of this Court, 'for the purpose of elucidating facts in respect of any matter in dispute' means where the circumstances render it expedient in the interest of justice to do so, the Court has power, which is discretionary in nature, to appoint Commissioner for the purpose of ascertaining, to make it clear, intelligible and 'issue to throw light upon the matter in issue, means the main dispute as well as the facts leading to the dispute.

Signature Not Verified Signed by: SHALINI This course may be adopted after the examination of the party or parties or suo motu."

The Hon'ble Supreme Court in the case of Haryana Waqf Board vs.

Shanti Sarup and others reported in (2008) 8 SCC 671 has considered the similar aspect of the matter and has directed to demarcation of the property, which reads as under:-

"4. Admittedly, in this case, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure which was rejected by the trial court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 of the CPC.

5. The appellate court found that the trial court did not take into consideration the pleadings of the parties when there was no specific denia