IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI ON THE 7^th OF JULY, 2022 WRIT PETITION No. 9107 of 2017 Between:-

1. KASHMIRILAL S/O SHRI VAZIRCHAND OCCUPATION: BUSINESS E-4/32, ARERA COLONY BHOPAL (MADHYA PRADESH)

2. LOKESH S/O VAZIRCHAND OCCUPATION:

BUSINESS E-4 ARERA COLONY BHOPAL (MADHYA PRADESH)

3. ASHOK S/O VAZIRCHAND OCCUPATION:

BUSINESS E-4 ARERA COLONY BHOPAL (MADHYA PRADESH)

4. SMT RAJ CHANDRA D/O PARMANAND OCCUPATION: BUSINESS E-4 ARERA COLONY BHOPAL (MADHYA PRADESH)

5. SMT SHEILA ASIJA D/O PARMANAND OCCUPATION: BUSINESS E-4 ARERA COLONY BHOPAL (MADHYA PRADESH)

6. KRISHNA KUMAR NARANG DEAD S/O PARMANAND TARUN KUMAR NARANG S/O KRISHNA KUMAR NARANG OCCUPATION: BUSINESS E-4 ARERA COLONY BHOPAL (MADHYA PRADESH)

7. VARUN KUMAR NARANG S/O KRISHNA KUMAR NARANG OCCUPATION: BUSINESS E-4 ARERA COLONY BHOPAL (MADHYA PRADESH)

.....PETITIONERS (BY SHRI KAPIL DUGGAL- ADVOCATE)

AND

1. M/S RAKSHA BUILDERS THROUGH ITS Signature Not Verified SAN PARTNER VIPIN GOYAL S/O SHRI S.N. GOYAL A/A 48 YEARS OCCUPATION BUSINESS E-4/173, BURMAN ARERA COLONY BHOPAL (MADHYA PRADESH)

2. SUPERINTENDENT OF LAND RECORDS COLLECTOR OFFICE BHOPAL (MADHYA PRADESH)

3. TAHSILDAR CAPITAL PROJECT ADMINISTRATION, BHOPAL T T NAGAR (MADHYA PRADESH)

4. COLLECTOR OLD SECRETARIAT BHOPAL (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI ASHISH GIRI - ADVOCATE)

(SHRI LALIT JOGLEKAR - GOVERNMENT ADVOCATE)

This petition coming on for final hearing at motion hearing stage this day, the court passed the following:

ORDER

Heard finally with the consent of both the parties.

I n this petition under Article 227 of the Constitution of India, petitioner/defendant has challenged the order dated 11.05.2017 (Annexure P/4)

th passed in RCS No.429-A/2014 by the XIV Additional District Judge, Bhopal (M.P.) whereby application filed by the petitioners/defendants under Order 26 Rule 9 of Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') for appointment of Commissioner has been rejected.

Brief facts of the case are that the respondents No. 1, 2 and 3/plaintiffs (Legal representatives of Smt. Gitarani Ghosh (deceased)) had preferred the Civil Suit No. RCS-429-A/2014 seeking declaration and permanent injunction in respect of the lands belonging to the petitioners in respect of land bearing Khasra No.2/7/1/2 Gram Chunabhatti Tahsil Huzur, District Bhopal admeasuring 0.70 acres, which is left after acquisition by State Government, which was allegedly purchased by them by a registered sale deed dated Signature Not Verified SAN

12.12.2012. The respondents/plaintiffs further prayed for a declaration that the present petitioners have no right to dispossess the plaintiffs from the said land and the demarcation proceedings being carried out by the defendants was illegal. It was also prayed that the petitioners be restrained from dispossessing the plaintiffs and be restrained from interfering in the construction work being undertaken by the plaintiffs on the said land.

The petitioners/defendants filed their written statement wherein they clarified that the land being claimed by the plaintiffs is actually the land belonging to the petitioners. It was further pointed out that even if the boundaries described in registered sale deed in favour of the plaintiff's predecessor Gitarani Ghosh is seen, it will be clear that the land belongs to the petitioners/defendants and the boundaries are being misconstrued by the plaintiffs to assume that it was plaintiff's lands, which is not the fact, in view of the aforesaid, the petitioners/defendants filed an application under Order 26 Rule 9 of CPC highlighting that the plaintiff's are misconstruing the boundaries mentioned their registry and had encroached the land belonging to the petitioners. The learned trial Court rejected the application on the ground that all the interested persons in the aforesaid survey numbers have serious dispute with regard to Fird Bantwara and the same has not been decided till date. The case