IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA ON THE 01^st OF SEPTEMBER, 2023 MISCELLANEOUS PETITION No.5034 of 2019 BETWEEN:-

MOHD TARIQ S/O LATE IFTEKHAR NAVED, AGED ABOUT 52 YEARS, OCCUPATION: AGRICULTURIST, R/O HOUSE NO.4, JINSI ROAD JAHANGIRABAD BHOPAL (MADHYA PRADESH)

.....PETITIONER (BY SHRI MOHD. ADIL USMANI - ADVOCATE)

AND

1. NAGAR NIGAM BHOPAL THROUGH COMMISSIONER, NAGAR NIGAM OFFICE BHOPAL (MADHYA PRADESH)

2. CHIEF ENGINEER, ENGINEERING DEPARTMENT, NAGAR PALIKA NIGAM BHOPAL (MADHYA PRADESH)

3. BLOCK OFFICER, ZONE NO. 10 CHANDBAD, NAGAR PALIKA NIGAM, BHOPAL (MADHYA PRADESH)

.....RESPONDENTS (BY MS. ANKITA KHARE - ADVOCATE)

……………………………………………………………………………………………

This petition coming on for admission this day, the court passed the following: ORDER This petition under Article 227 of Constitution of India has been filed against order dated 16/07/2019 passed by First Civil Judge Class-2, Bhopal in RCSA No.1589/2019, by which application filed under Order

26 Rule 9 CPC has been rejected.

Signature Not Verified Signed by: SHUBHANKAR

2. It is the case of petitioner that he had filed an application under Section 94 read with Section 151 of CPC against respondents seeking declaration that respondents may be restrained from encroaching upon the land which is adjoining to Government land bearing khasra No.59- 61 Patra Nala. It is the case of petitioner that he is the owner and in possession of khasra No.63 area 0.121 hectares, khasra No.64, 65, 66, 67 area 1.150 hectares, khasra No.69 area 0.065 hectares, khasra No.70 area 0.057 hectares, khasra No.71 area 0.101 hectares situated at Khushipura, Gram Chandbad, Ward No.36, Tahsil Govindpura, District Bhopal. It was the claim of petitioner that since other builders as well as residents of the colony had encroached upon the surrounding land of Patra Nala, therefore during rainy season, Nala used to over-flow. As a result there was soil erosion of the land belonging to petitioner. Since there was a plan to construct Pakka Nala, therefore petitioner moved an application for demarcation but same was not done. On 10/02/2019, petitioner went to his land then he found that on his private land bearing khasra Nos.63, 64, 65, 66, 67, 69, 70, 71 construction material as well as Dumper, JCB etc. have been parked and digging is going on for construction of Nala. When petitioner requested the Contractor to get the land demarcated, then he informed that he has been instructed by the Authorities to construct Pakka Nala at the same place from where it is flowing. Thus, application under Section 94 of CPC was filed that defendants must construct a Pakka Nala only after carrying out the demarcation and they should be restrained from encroaching upon the land belonging to petitioner i.e. khasra Nos.63 to 67, 69 to 71 area 3.69 acres. Petitioner filed an application under Order 26 Rule 9 CPC for demarcation of land. The said application has been rejected by the Trial Court on the ground that it would amount to collection of evidence.

Signature Not Verified Signed by: SHUBHANKAR

3. Challenging the order passed by the Trial Court, it is submitted by counsel for petitioner that neither of the parties are claiming title over the land in dispute. Respondents have not disputed the owner-ship of petitioner over khasra Nos.63 to 67, 69 to 71 area 3.69 acres. Similarly, petitioner is not claiming title over khasra No.59 to 61 which is Patra Nala. The only question is as to whether respondents are trying to encroach upon the land belonging to petitioner. Thus, it is a case of boundary dispute which should be resolved by appointing a local Commissioner.

4. Per contra, petition is vehemently opposed by counsel for the respondents. However, it was fairly conceded that respondents are not claiming any title over the land bearing khasra Nos.63 to 67, 69 to 71 area 3.69 acres belonging to petitioner.

5. Heard learned counsel for the parties.

6. The only dispute in the present suit is as