1 S.A. No. 126/2011 HIGH COURT OF MADHYA PRADESH: JABALPUR SINGLE BENCH: HON. SHRI JUSTICE A.K. SHRIVASTAVA SECOND APPEAL NO. 126/2011 ......... Appellants : 1. Awadh Narayan, Defendants S/o Shri Balmukund Gujrati, Aged about 62 years, R/o Gram Mungawali, Tahsil & District Sehore, M.P. 2. Jagdish Nigodiya, S/o Shri Awadh Narayan, Aged about 45 years, R/o Gandhi Road, Chawni, Tahsil & District Sehore, M.P. 3. Raghuveer Nigodiya, S/o Shri Awadh Narayan, Aged about 40 years, R/o Gandhi Road, Chawni, Tahsil & District Sehore, M.P. Versus ........ Respondent : Jamna Prasad Plaintiff S/o Shri Gotmal Verma, aged about 72 years, R/o Gandhi Road, Chawni, Tahsil & District Sehore, M.P. ................................................................................................ Appellants - Shri R.P. Agrawal, Senior Advocate with Shri Praveen Dave, Advocate. Respondent - Shri Aditya Adhikari, Advocate with Shri Chandrahas Dubey, Advocate ............................................................................................... O R D E R (19/04/2011) 2 S.A. No. 126/2011 1. This is defendants second appeal against the judgment of reversal. The suit of the plaintiff for mandatory injunction has been dismissed by the learned Trial Court and the learned First Appellate Court has decreed the same. 2. No exhaustive statements of fact are required to be narrated for the purpose of disposal of this second appeal. Suffice it to say, a suit for mandatory injunction and injunction has been filed by the plaintiff praying for the following reliefs:- “ v Loro?kks"k.kk dh fMdzh oknh ds i{k eas ,oa izfroknhx.k ds fo:) bl vk'k; dh ikfjr dh tkoas dh oknh ds Hkou ua 359 iqjkuk xk/khjksM lhgksj dh mRrjh fn'kk ds ik[ks dh fnokj 8 fQV oknh vdsys ds LokfeRo dh ,oa fcyk 'kjkdr gS A c vkKkid fu"ks/kkKk dh fMdzh oknh ds i{k eas ,oa izfroknhx.k ds fo:) bl vk'k; dh ikfjr dh tkos fd izfroknhx.k }kjk oknh dh 8 fQV yafc fnokj tks layXu ekufp= ls v ls c ykyL;kgh ls n'kkZbZ xbZ gS ij muds }kjk fd;k x;k voS/k fuekZ.k vfoyEc gVk ysoas vU;Fkk ekuuh; U;k;ky; ls gVok;k tkoasA l okn O;; ,oa vU; U;k;ksfpr lgk;rk tks Jheku th mfpr le>s oknh dks iznku djas A “ 3. According to the plaintiff, he is the owner of a house in question including the disputed wall 8 ft. long which has 3 S.A. No. 126/2011 been delineated in the plaint map as A to B. According to the plaintiff, the house of the defendants is adjacent to the plaintiff's wall and they are raising construction in their house by including the disputed wall. Hence, the construction which has been raised be demolished by passing a decree of mandatory injunction. 4. The plaint averments have been denied by the defendants by filing the written statement. According to the defendants, the wall in question is being utilized by them also and the said wall is not in the exclusive ownership of the plaintiff. 5. The learned Trial Court framed necessary issues and after recording evidence of the parties dismissed it as regards issuance of mandatory injunction. The plaintiff/respondent assailed the said judgment and decree passed by the learned Trial Court by filing First Appeal which has been allowed and the suit has been decreed. In this manner, this second appeal has been filed at the instance of the defendants. 6. This Second Appeal is admitted on the following substantial questions of law:- 4 S.A. No. 126/2011 (i) “Whether, the learned trial Court was right in dismissing the appellants application under Order 26 Rule 9 Code of Civil Procedure ?” (ii) Whether plaintiff's suit for mandatory injunction could be decreed when he himself had admitted that the construction which has been raised by the defendants is adjacent to the plaintiff's disputed wall ?” 7. The contention of Shri Agrawal, learned senior counsel for the appellants is that an application under Order 26 Rule 9 was filed before the learned Trial Court by the defendants/appellants to get the disputed wall inspected but the same has been rejected on 21.7.2009. Further it has been contended by him that since the learned two Courts below have found that plaintiff/respondent is the owner of the disputed wall, hence, whether the construction which has been raised by the defendants is on the disputed wall or not, for its ascertainment issuance of Commission was necessary and, therefore, by rejecting the said application under Order 26 Rule 9 CPC, the learned Trial Court has acted in flagrant violation of law. 8. In order to address substantial question no.2, learned senior counsel has invited my attention to para 8 of the 5 S.A. No. 126/2011 cross examination of the plaintiff Jamna Prasad in which he has admitted that defendants have raised the construction adjacent to the disputed wall and if that would be the position, learned First Appellate Court erred in substantial error of law in decreeing the suit of the plaintiff. 9. On the other hand, Shri Adhikari, learned counsel appearing for the plaintiff/respondent argued in support of the impugned judgment and submitted that cogent reasons have been assigned by the learned First Appellate Court for decreeing the suit and, therefore, this appeal be dismissed. 10. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed in part and the case is required to be sent back to the learned Trial Court. Regarding Substantial Question of Law No.1 11. On going through the findings of the two Courts below, it is gathered that both the courts have concurrently found that plaintiff is the owner of the disputed wall having length of 8 ft. The question now arises for consideration is that whether defendants/appellants are raising construction over the plaintiff's wall or not. In order to ascertain whether 6 S.A. No. 126/2011 the construction which has been raised by the defendants is on plaintiff's wall or adjacent to it, the Trial Court ought to have issued the Commission for its inspection. Since this is the moot question to decide the suit, the application which was filed by the defendants ought to have been allowed although certain other averments are made therein. 12. In this view of the matter, I am of the view that without ascertaining whether defendants are raising the construction on the plaintiff's disputed wall, the suit could not have been decreed by the learned First Appellate Court, hence the judgment and decree passed by the learned First Appellate Court is hereby set aside and the case is sent back to the learned Trial Court with a direction that he shall appoint a Revenue Inspector of the Nazul Department of Tehsil Sehore to get the wall inspected in order to ascertain whether defendants are raising construction over the plaintiff's ownership disputed wall having length of 8 ft. However,it is made clear that this Court has not interfered with the findings of the learned two Courts below holding that plaintiff/respondent is the owner of the disputed wall. The said finding is hereby affirmed. This substantial question of law in thus answered that 7 S.A. No. 126/2011 without appointing the Commissioner to inspect the disputed wall in order to ascertain whether the defendants are raising construction over the plaintiff's ownership disputed wall, the suit of the plaintiff could not have been decreed. Regarding Substantial Question of Law No.2 13. Since the matter is being sent back to the learned Trial Court to pass a fresh judgment, this substantial question of law is not being answered and this point is kept open. The learned Trial Court shall consider the evidence of the plaintiff at the time of passing of the judgment. 14. Resultantly, this appeal succeeds and is hereby allowed in part. The impugned judgment and decree passed by the learned two Courts below are hereby set aside and the case is sent back to the learned Trial Court to decide the suit afresh. The directions mentioned herein above shall be kept in the mind at the time of passing of judgment by learned Trial Court. The parties are hereby directed to appear before the learned Trial Court on 9.5.2011 and no fresh notice shall be issued to them in this regard. On this date, the learned Trial Court shall appoint a Revenue Inspector of Nazul Department of Tehsil Sehore 8 S.A. No. 126/2011 to get the disputed wall inspected. The parties shall be free to file objections on the Commissioner's Report and if the learned Trial Court thinks it proper or on the prayer being made by the either party, may examine the Commissioner in the Court. The expenses of the Commissioner shall be borne by the defendants. It is further made clear that on a limited point, the matter is being remanded to learned Trial Court and the learned Trial Court shall not permit either of the party to lead any other evidence on other issues. The learned Trial Court is further directed to decide the suit on or before 30th July, 2011. 15. This appeal is accordingly allowed in part with no order as to costs. (A.K. SHRIVASTAVA) JUDGE rao 9 S.A. No. 126/2011 Second Appeal No. 126/2011 19.04.2011 Shri R.P. Agrawal, learned senior counsel with Shri Praveen Dave, learned counsel for the appellants. He is heard on the question of admission. This appeal is admitted on the following substantial questions of law:- (i) “Whether, the learned trial Court was right in dismissing the appellants' application under Order 26 Rule 9 Code of Civil Procedure ?” (ii) “Whether plaintiff's suit for mandatory injunction could be decreed when he himself had admitted that the construction which has been raised by the defendants is adjacent to the plaintiff's disputed wall ?” At this juncture Shri Aditya Adhikari, learned counsel with Shri Chandrahas Dubey appears and accepts the notice on behalf of respondent/plaintiff. Learned counsel for the parties submit that the point involved is short, therefore, appeal itself be heard finally. Prayer is accepted. Order dictated. Signed and dated separately. (A.K. SHRIVASTAVA) JUDGE rao