Page No.1

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

W.P. (227) No. 293 of 2016

1.

Devendra Kumar, S/O. Late Sakharam Kesharwani, Aged About

62 Years R/O Village Navagarh, Tahsil & P.S. Navagarh, District

Janjgir Champa, (Chhattisgarh)

---- Petitioner

Versus

1.

Shailendra Kumar Kesharwani S/O Late Shobharam Kesharwani,

Aged About 39 Years

2.

Reema Kesharwani, D/O Late Shobharam Kesharwani, Aged

About 36 Years

3.

Smt. Chanda Devi Kesharwani, Wd/O Late Shobharam

Kesharwani, Aged About 58 Years

4.

Chandrakanta, Wd/O Late Leeladhar Kesharwani, Aged About 45

Years

5.

Sanjay Kumar, S/O Late Leeladhar Kesharwani, Aged About 19

Years

6.

Kumari Kajal, D/O Late Leeladhar Kesharwani, Aged About 15

Years Through Her Natural Guardian Mother Smt. Chandrakanta,

Wd/O Late Leeladhar Kesharwani,

7.

Arun Kumar, S/O Late Leeladhar Kesharwani, Aged About 55

Years

8.

Garun Kumar, S/O Late Sakharam Keshrwani, Aged About 55

Years

9.

Suresh Kumar, S/O Late Sakharam Kesharwani, Aged About 45

Years

10.

Shyam Bai Alias Bhuli Bai, Wd/O Late Sakharam Kesharwani,

All respondents are R/O Village Navagarh, Tahsil & P.S.

Navagarh, District Janjgir- Champa, (Chhattisgarh)

11.

State Of Chhattisgarh, Through Collector Janjgir Champa, District

Janjgir Champa, (Chhattisgarh)

….....Respondents

For Petitioner

:

Mr. F.S. Khare, Advocate

For State/Respondent No.11

:

Mr. S.C. Khakhariya, Dy.A.G.

Page No.2

Hon'ble Shri Justice Goutam Bhaduri

Order On Board

27/04/2016

1.

Challenge in this petition is to the order dated 19.02.2016,

passed in Civil Suit No.26A/2013, passed by the Civil Judge

Class-II, Navagarh, District – Janjgir-Champa, whereby the

learned Trial Court has rejected the application under Order 26

Rule 9 of C.P.C. filed by the petitioner/defendant No.1.

2.

The petition is by the defendant No.1, Devendra Kumar.

3.

A suit was filed by the plaintiffs, Shailendra Kumar, Reema

Kesharwani and Smt. Chanda Devi Kesharwani for declaration,

partition and for possession. The defendants filed their written

statement and contended that over the suit property, a super

structure existed, therefore, in order to evaluate the facts for the

purpose of Court fees, the area is to be inspected by the local

commissioner and the application was filed under Order 26 Rule

9 of C.P.C., which is dismissed. Hence this instant petition.

4.

As has been submitted that till date the issues has not been

framed. Thereafter admittedly the suit will go in for trial, wherein

the petitioner/defendant can very well place on record and prove

the fact that over the suit property, super structure existed for

which the partition is claimed. At this stage, at can not be

assumed only on the basis of submission of the defendant that

suit house consist of super structure, it can very well be proved

during the course of evidence. The Court can not collect the

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evidence on behalf of the parties as has been stated that the

property for which the dispute is existing situated within the

municipality limit, therefore, such facts of existence of super

structure can very well be proved during the course of evidence.

5.

Therefore, after going through the order, in my considered

opinion as appears no jurisdictional error has been committed or

it can be stated that it is a case where the Court has exceeded

the jurisdiction vested in it by law. Consequently I am of the

opinion that this is not a case where the power under Article 227

of the Constitution of India is to be invoked.

6.

Accordingly, the petition is dismissed at admission stage itself.

Sd/-

(Goutam Bhaduri)

Judge

Balram