IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL ON THE 07^th OF JULY, 2023 SECOND APPEAL No. 1503 OF 2022 BETWEEN:-

KUNDAL PRASAD DUBEY S/O LATE RADHAKRISHNA DUBEY, AGED ABOUT 50 YEARS, OCCUPATION: AGRICULTURIST VILLAGE MEDHOULI, TEHSIL AND DISTRICT- SINGRAULI, (MADHYA PRADESH)

................APPELLANT (BY SHRI ANKUR SHRIVASTAVA - ADVOCATE)

AND

1. NAGAR PALIKA NIGAM SINGRAULI THROUGH THE COMMISSIONER NAGAR PALIK NIGAM SINGRAULI, DISTRICT- SINGRAULI, M.P. (MADHYA PRADESH)

2. INCHARGE COMMISSIOER REVENUE NAGAR PALIK NIGAM SINGRAULI DISTRICT SINGRAULI (MADHYA PRADESH)

..............RESPONDENTS (BY SHRI SHEETAL TIWARI - ADVOCATE )

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This appeal coming on for admission this day, the court passed the following:

JUDGMENT

Heard on the question of admission.

2. This second appeal being arguable is admitted for final hearing on the following substantial questions of law:

i). “Whether after allowing the application under Order 41 Rule 27 CPC, learned first appellate Court has committed illegality in not considering the additional documents ?

ii). Whether learned Courts below have erred in not taking into consideration the commissioner report (Ex.C/1,C/2 and C/3) while passing the impugned judgment and decree ?”

3. While passing the order on the pending application for temporary injunction, learned counsel appearing for the respondents/defendants submits that there being short questions involved in the second appeal, the same may be heard finally and case may be remanded for consideration of the civil appeal afresh by learned first appellate Court. This submission of learned counsel for the respondents, is not opposed by learned counsel for the appellant/plaintiff. As such the instant second appeal is heard finally.

4. This second appeal has been preferred by the plaintiff/appellant challenging the judgment and decree dtd. 11.6.2022 passed by Principal Distt. Judge, Singrauli, H.Qr. Waidhan in Civil Appeal no. 06/2021 affirming the judgment and decree dtd. 15.02.2021 passed by I Civil Judge Class II, Waidhan in Civil Suit no.14000036/14, whereby learned Courts below have dismissed the plaintiff’s suit filed for declaration of title and permanent injunction in respect of land survey no. 358/143 area 0.133 hectare, situated in village Medholi, Distt. Sidhi, over which the disputed shops are said to be in existence shown in the plaint map from red ink.

5. As against the case of plaintiff, the case of defendants has been that the shops of the plaintiff are situated on the defendants’ land survey no.35/21 area 4.452 hectare, as shown in the map annexed with the written statement, which being encroachment, is being removed by the defendants by following due process of law.

6. There being dispute of two survey numbers and boundaries as well as of encroachment, the learned Court below in view of settled law rightly appointed commissioner for demarcation/spot inspection, who submitted its report (Ex.C/1,C/2 and C/3), which was not objected by the defendants, which appears to be in favour of the plaintiff. For the reasons mentioned in the judgment, learned trial Court refused to consider the report and resultantly dismissed the suit.

7. Upon the plaintiff’s filing civil appeal along with application under order 41 rule 27 CPC, learned first appellate Court although allowed the application for additional evidence, but dismissed the appeal affirming judgment and decree of trial Court.

8. From bare perusal of paragraph 18 of the trial Court’s judgement and paragraph 29 of the first appellate Court's judgment, it is clear that learned Courts below have discarded the commissioner report from consideration on the ground of availability of other evidence on record but at the same time, it is also apparent from the record that Commissioner was appointed by the Court below itself and after filing of the commissioner report, the defenda