Madanlal vs Devilal - 1996 Supreme(MP) 1100

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : S.L. Pamecha
For the Respondent: B.L. Pavecha

Headnote:Civil Procedure Code, 1908 – O. 26 R. 9 – dispute as to area, boundaries, location and possession – may be decided by appointing commission when document of title is on record.
        Short Note
       1. The appeal is directed against the judgment and decree dated 15.12.78 of First Additional District Judge, Mandsaur, passed in Civil Appeal No. 137 – A/76, whereby while affirming the judgment of Civil Judge, Class – 2, Baraingarh, in Civil Suit No. 79 – A/74 for declaration of title and injunction against the defendant the plaintiff's suit has been dismissed.
       2. The brief history of the case is that the plaintiff (appellant here) filed a suit in the Court of Civil Judge, Class – 2, Baraingarh on 18.11.74 with the assertion that he is owner in possession of land bearing Survey No. 2242 & 2243, situated in Municipal area of Naraingarh, but the defendant is denying the title and has encroached upon one part of the land bearing Survey No. 2243, as shown in map Ex. P/2 & P/19.
       3. The defendants denied the assertions of the plaintiff and further pleaded that they are in possession of that portion of land for many years and it has further been asserted that the encroached portion does not form part of Survey No. 2243 of Naraingarh.
       4. The learned trial Judge has found certain overwriting in document Ex. P/20 (the title deed of the transferer of land to plaintiff) as such dismissed the suit. The appeal filed by the plaintiff proved abortive. Hence, this 2nd Appeal.
       5. This 2nd appeal has been admitted on following substantial questions of law: –
       (i) Whether in the facts and circumstances of the case the trial Court ought to have appointed a Commissioner under O. 26 R. 9 CPC?
       (ii) Whether the judgments of the. Courts below are based on surmises and mis – appreciation of evidence?
       6. The contention of the learned counsel for the appellant is that even if the document Ex. P/20 is found to be suspicious, the documents Ex. P/1, P/3 & P/18 proved the title of the plaintiff. It has further been submitted that there was dispute of boundaries, therefore, it was necessary for the trial Court to have appointed a Commissioner for finding out the actual position and boundary of the land in dispute.
       7. As against it, learned counsel for the defendants – respondents has submitted that once document Ex. P/20 has been found to be materially altered after its execution specially on the point of breadth of the land concerned the whole document has to be rejected and it has rightly been done so. Thus, the plaintiff has failed to prove the title and, as such, the suit has rightly been dismissed by the two Courts below.
       8. Regarding document Ex. P/20 what has been brought out is that the figure of 8 has been altered to 10 for showing the larger breadth, but breadth of 8 Haths = 12' finds place in document Ex. P/18 also and, therefore, the dispute appears to be of the actual boundary of Survey No. 2243. Merely because document Ex. P/20 has been found to be suspicious the whole of the evidence of the plaintiff could not be rejected on this ground and to that extent the finding of the two Court below borders to perversity. It was incumbent upon the two Courts below to have examined other documents for coming to a correct conclusion as to the existence of land bearing survey No. 2243 and as to the area of that land. This could very easily be done by appointing a Commissioner. Under the circumstances, it is held that learned trial Judge and 1st appellate Court were not correct in rejecting the prayer for appointment of Commissioner in exercise of powers u/O.26 R.9 of CPC.
       9. Learned counsel for the respondents has referred to a case reported in 1985 MPWN Note 372 and submitted that since the plaintiff has adduced all the evidence and application was filed at the fag end of trial and, therefore, it was not necessary for the Court to have appointed a Commissioner.
       10. There is no dispute on the point of the principle of appointment of Commissioner, as observed by Hon'ble Shri Justice G.G. Sohani, as he then was, but that was in the special facts and circumstances of that case. Here, in this case the document of title has been produced and proved. The only dispute is as to what is the position, location and boundary of Survey No. 2243 and further whether defendant is in possession of any part of that area; whether the possession of the defendant is sufficiently old so as to disentitle the plaintiff from bringing the suit. This can be clarified only by survey on the spot by Commissioner.
       11. As a result, the appeal succeeds. The decree granted by two Courts below are set aside. The file is remanded back to C.J. – 2, Naraingarh with a direction that the learned trial Judge shall appoint a Commissioner for survey of actual area of land bearing survey No. 2243 and to further measure whether any area forming part of land bearing survey No. 2243 is in possession of the defendant and, thereafter, parties may be given opportunity to adduce additional evidence. Thereafter, the Court shall come to a finding as to the extent of encroachment, if any. Costs of the suit and appeal shall be as per final result of the case. The parties shall appear before the Civil Judge, Class – 2, Naraingarh on 10.5.96. No further notice could be required.
       12. Any direction of this Court shall not adversely affect the appreciation and evaluation of the evidence, by trial Court. The Court shall be free to reach to a definite conclusion, on the basis of evidence adduced by the parties.