LI Network
Published on: November 08, 2023 at 17:50 IST
The Madhya Pradesh High Court has recently emphasized that the appellate court holds the same authority as the trial court under Section 107 of the Code of Civil Procedure (CPC) to issue a commission for the demarcation of a suit property, even in the absence of a commission application from either of the parties.
Justice Dwarka Dhish Bansal, presiding over a single-judge bench, clarified that when the identity of the land is disputed, and property demarcation is necessary, only a court-appointed commissioner can ascertain the true situation.
The court pointed out, “It is clear that disputes over encroachment, the location of the suit property, its area, identity, boundaries, and survey numbers cannot be resolved without the appointment of a commissioner.”
Referring to the case of Gajraj & Ors v. Ramadhar & Ors. (1975), the bench in Jabalpur noted that the first appellate court itself has the authority to conduct the demarcation of the suit property.
Therefore, the appellate court’s decision to remand the case, which was initially dismissed by the trial court, for a fresh examination by the trial court for the sole purpose of demarcating the suit property was incorrect, as per the high court’s order.
The court stated, “The impugned judgment of remand, passed solely for the purpose of demarcating the suit property, is not sustainable because the first appellate court can conduct the demarcation of the suit property itself. It is also worth mentioning that in this case, neither party filed an application under Order 41 Rule 27 CPC or under Order 6 Rule 17 CPC.”
The High Court, while setting aside the remand judgment, directed the first appellate court to adjudicate the appeal after issuing a commission for a local inspection of the suit property, including the survey numbers provided by the defendants/appellants, to determine the exact location, number, and essential details of the suit property.
The court added, “The Commissioner must be instructed to prepare an accurate map of the location and submit it along with a report. After obtaining such a report along with the map and considering any objections from the parties, the first appellate court will decide the appeal based on the entire record, including the commissioner’s report.”
The suit for a declaration of title and permanent injunction filed by the appellants was initially dismissed by the trial court. On first appeal, the Additional District Judge of Sagar District reversed the judgment and sent the case back to the trial court for a fresh examination with the involvement of a commissioner or revenue officer to demarcate the suit property.
Case Title: Rajaram Mali S/o Shri Kanhaiyalal Mali & Anr v. Smt. Ganga Bai (Dead) & Ors.