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2025 Supreme(Online)(MP) 5468
HIGH COURT OF MADHYA PRADESH
DEEPAK KHOT, J
SUJEET SHRIVASTAVA – Appellant
Versus
GANGA SAGAR – Respondent
MISC. PETITION No. 1348 of 2025
For the Appellants/Petitioners: Shri Om Prakash Dwivedi
For the Respondents:
The court ruled that prior investigations by authorities suffice, negating the need for further inquiry under Order 26 Rule 9 of CPC.
Headnote:(A) Constitution of India - Article 227 - Civil Procedure Code (CPC) - Order 26 Rule 9 - Application for appointment of a Commissioner for encroachment - Impugned order dismissed as the Municipality already determined encroachment - No further inquiry needed as adequate investigation purportedly established facts. (Paras 2, 5, 9)
(B) Legal Principles - Courts may refuse to order further investigation if substantial evidence already exists regarding encroachment, per Order 26 Rule 9 - Appellate jurisdiction under Article 227 limited to manifest errors. (Paras 9, 10)
Facts of the case:
The petition arises from an application seeking the appointment of a Commissioner to determine encroachment, following a Municipality's notice. The lower court dismissed the application, stating the matter was sufficiently investigated already.
Findings of Court:
The court found no manifest error in the dismissal of the application since prior inquiries were deemed adequate and established the necessary facts.
Issues: The key issues focused on the need for further inquiry when the Municipality had already investigated the encroachment and the sufficiency of prior conclusions.
Ratio Decidendi: The court affirmed that where authoritative investigations exist, additional orders for spot investigations are unneeded, and courts should not intervened under supervisory jurisdiction unless errors are manifest.
Result: Petition dismissed.
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| 1. prior municipal investigation suffices for encroachment disputes. (Para 2) |
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE DEEPAK KHOT th ON THE 14 OF AUGUST, 2025 MISC. PETITION No. 1348 of 2025 SUJEET SHRIVASTAVA Versus GANGA SAGAR Appearance:
Shri Om Prakash Dwivedi - Advocate for the petitioner.
ORDER Heard on admission.
The present petition under Article 227 of the Constitution of India has been filed by the petitioner against the order dated 22.02.2025 (Annexure P/1) passed in RCSA No.192/2018 by 2nd Civil Judge, Junior Division, District Shahdol; whereby, the application submitted by the petitioner under Order 26 Rule 9 of CPC has been dismissed.
2. It has been submitted by learned counsel for the petitioner that the petitioner submitted an application (Annexure P/5) stating that the concerned Municipality after due inquiry found encroachment over the road and issued notice on 14.02.2020. It is further submitted that the petitioner has also submitted counter claim for declaration of his easementary rights infringed because of the encroachment done by the respondent/plaintiff. Therefore, he has filed an application under Order 26 Rule 9 of CPC for determination of the encroachment by an independent Commissioner. The said application has Signature Not Verified Signed by: ANAND KRISHNA been dismissed by the learned court below for extraneous reasons and against the settled principles of law, therefore, the impugned order deserves to be set-aside.
3. Heard learned counsel for the petitioner and perused the record.
4 . The learned Court below while adverting to the application submitted by the petitioner/defendant has opined that the suit by the respondent/plaintiff was filed for declaration and injunction in that there is no dispute in regard to the boundaries and construction. In addition, it was also found that no question in respect of wall by the respondent/plaintiff on a Nistar land had emerged.
5. In the present case in hand, the petitioner himself has admitted in paragraph 4 of the application that the concerned Municipality after due inquiry has found encroachment of the respondent/plaintiff. As such the commission by the authorities, who are expert in the matter, has already been done and is on record. No further Commission for spot inspection and report is required in the matter. It seems that the petitioner who has filed counter claim in respect of declaration of his easementary rights is trying to establish his case by collecting the evidence from the Commissioner.
6. Coordinate Bench of this Court in the case of Loknath Gautam vs.
State of M.P. & ors. reported in 2018 SC Online MP 600 relying on the order passed by the Division Bench of this Court in the case of Durga Prasad vs. P. Foujdar 1975 JLJ 440 has held as under :
"6. The ancillary question is whether for the purpose of determining the identity of land or in case of boundary dispute power under Order 26 Rule 9 can be exercised? This point is no more res integra. The Division Bench of this Court in the Signature Not Verified Signed by: ANAND KRISHNA case reported in 1975 JLJ 440, [Durga Prasad v. P. Foujdar] opined that in case where there is a dispute as to encroachment, the fact whether there is such an encroachment or not cannot be determined in the absence of an agreed map, except by the appointment of a Commissioner under Order 26 Rule 9 CPC.
7. The Bombay High Court has consistently taken the view that in cases of boundary dispute and dispute about the identity of land, courts should order local investigation under Order 26 Rule 9 CPC. (See: (2004) 3 Mah LJ 724, [Sukhdeo Parashramji Bhugul (Dr.) v. Wamanrao Nagorao Charhat .]; (2009) 6 AIR Bom R (NOC 1033) 329, [Girish Vasantrao Bhoyar v. Nimbaji Warluji Bambal]; (2010) 4 AIR Bom R (NOC 450) 127, [Yeshwant Bhaduji Ghuse v. Vithobaji Laxman Ladekar .]; (2014) 1 AIR Bom R 16 : AIR 2014 (NOC 173) 59, [Malhar v. Shivaji] and (2015) 4 AIR Bom R (NOC 3) 2, [Shyam Jana
