1 S.A. No. 228/2003 HIGH COURT OF MADHYA PRADESH: JABALPUR SINGLE BENCH: HON. SHRI JUSTICE A.K. SHRIVASTAVA SECOND APPEAL NO. 228/2003 ......... Appellants : 1. Ramsingh Bagri, Defendants aged about 65 years, No.1 and 2 S/o Late Galjhar Bagri, resident of Jatpur Kalan, Tahsil & District Seoni 2. Ramdayal Bagri, aged about 55 years, S/o Late Narayan Singh Bagri, R/o Looghar Bada, Tahsil & District Seoni. Versus ........ Respondents : 1. Smt. Sutia Bai, aged about 70 years, wife of Late Bheekam Singh Bagri 2. Ramesh Prasad, aged about 52 years, son of Late Bheekam Singh Bagri 3. Mahesh Prasad, aged about 47 years, son of Bheekam Singh Bagri, All are agriculturists and resident of Village Looghar Bada, Patwari Halka No. 79/2, Seoni Part-2, Tahsil and District Seoni. 2 S.A. No. 228/2003 ................................................................................................ Appellants - Shri P.R. Bhave, Senior Advocate withShri Bhanu Yadav, Advocate. Respondent No.1 to 3 - Shri Sameer Seth, Advocate. ............................................................................................... O R D E R (06/04/2011) 1. This second appeal has been filed at the instance of defendants. The suit of the plaintiff was dismissed by the learned Trial Court but was decreed by the learned First Appellate Court. 2. No exhaustive statements of fact are required to be narrated for the purpose of disposal of this second appeal. Indeed, the parties belong to one family. Learned counsel for the parties submit that this position is not disputed that an oral partition took place on 16.02.1967 and thereafter memorandum of oral partition was reduced in writing on 29.4.1968. However, later on the survey numbers were changed and, therefore, there appears to be a dispute that disputed property fell in the share of plaintiff or defendants. Indeed, the Commission was issued by the learned Trial Court and the Revenue Inspector Shri Gulab Chand was directed to inspect the suit property for its identification. 3 S.A. No. 228/2003 2. This Court admitted the Second Appeal on 30.8.2005 on the following substantial question of law:- “Whether, the lower appellate Court is unjustified in reversing the judgment and decree of the trial Court and further in decreeing the suit without issuance of survey commission, ignoring the dispute about identity of the suit property?” 3. The contention of Shri Bhave, learned senior counsel for the appellants is that indeed the dispute is in respect of demarcation and the identity of the suit property and this can be resolved only by appointing a Commissioner and hence, learned First Appellate Court erred in substantial error of law in decreeing the suit of the plaintiff in absence of any Commissioner's report. 4. On the other hand, Shri Sameer Seth, learned counsel appearing for the plaintiff/respondents no.1 to 3 argued in support of the impugned judgment and submitted that defendants themselves are responsible because they did not permit the revenue Inspector to get the property inspected on Commission. 5. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed and case is required to be sent to the learned Trial Court. 4 S.A. No. 228/2003 Regarding Substantial Question of Law. 6. Indeed the admitted position is that on 16.2.1967, oral partition took place between the parties and on 29.4.1968 a memorandum of partition was recorded admitting the earlier oral partition which took place on 16.2.1967. Later on, the survey numbers were changed and therefore, the dispute arose between the parties who are the members of same family. According to me, when there is a dispute in respect of demarcation and identity of the property in dispute, this issue can only be resolved by appointing a competent revenue employee as Commissioner and in fact this was done by the learned Trial Court by appointing Shri Gulab Chand, Revenue Inspector to get the disputed property identified and demarcated. However, on bare perusal of the judgment of learned Trial Court, this Court finds that on account of the non cooperation of the defendants/appellants, the Commissioner could not inspect the property in dispute because the instruments of demarcation which he was holding were thrown over by the defendants at the time of inspection and for this reason the commission failed. 5 S.A. No. 228/2003 7. Since there cannot be any decree without issuing any Commission when there is a dispute about the identity and demarcation of the land, therefore, learned First Appellate Court erred in substantial error law in decreeing the suit of the plaintiff without issuing any Commission. In this regard, I may profitably place reliance on the judgment of the Supreme Court in the case of Shreepat Vs. Rajendra Prasad and others(2000) 6 Supreme 389 and also in Haryana Wakf Board Vs. Shanti Shaup and others (2008)8 SCC 671. 8. The substantial question of law is thus answered in favour of the appellants. However, since the appellants/ defendants them selves created obstruction and did not allow the commissioner to demarcate and identify the disputed property, they are liable to pay cost of Rs.5000/-. Let the cost be deposited by the appellants/ defendants on or before 13.5.2011 before learned Trial Court failing which their defence shall stand struck off and they would not have any right to take part in the Commission. The plaintiffs shall be free to withdraw the amount of cost which shall be deposited by the appellants/ defendants. The parties shall appear before the learned Trial Court on 9..5.2011. Registry 6 S.A. No. 228/2003 is hereby directed to send back the record posthaste to the learned Trial Court so as to reach much earlier to 9.5.2011. It is however, made clear that no fresh notice shall be issued by the learned Trial Court to the parties for the date of hearing 9.5.2011. The parties shall be free to raise objections on Commissioner's report and if necessary may cross examine the Commissioner and may also adduce evidence on the limited point of identity of the disputed property. 9. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment and decree of the learned two Courts below are hereby set aside and the case is sent back to the learned Trial Court to comply with the aforesaid directions and thereafter may pass fresh judgment. Since the civil suit is of the year 1988, the Trial Court is hereby directed to pass the judgment on or before 30.08.2011. (A.K. SHRIVASTAVA) JUDGE rao 7 S.A. No. 228/2003 Second Appeal No. 228/2003 06.04.2011 Shri P.R. Bhave, learned senior counsel with Shri Bhanu Yadav, learned counsel for the appellants. Shri Sameer Seth, learned counsel for the respondents no.1 to 3. They are heard on I.A. No. 3683/2011 which is an application to hear this appeal at an earlier date. Looking to the averments made in the application, the same is hereby allowed. Learned counsel for the parties submit that the point involved in this appeal is very short and, therefore, the appeal itself be heard finally. Prayer is accepted. Order dictated. Signed and dated separately. (A.K. SHRIVASTAVA) JUDGE rao