Madhya Pradesh High Court

MP/948/2020 of SHANKARLAL Vs IQBAL HUSSAIN on 1 February 2024

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COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI

IN THE HIGH COURT OF MADHYA PRADESHAT INDOREBEFORE

HON'BLE SHRI JUSTICE PRANAY VERMAON THE 1[st] OF FEBRUARY, 2024

MISC. PETITION No. 948 of 2020

BETWEEN:-

SHANKARLAL S/O MAYARAM RATHORE, AGED ABOUT55 YEARS, OCCUPATION: BUSINESS GRAM CHAKTALA(MADHYA PRADESH)

(BY SHRI JITENDRA BHARAT MEHTA - ADVOCATE)

.....PETITIONER

AND

1.IQBAL HUSSAIN S/O KUHDABAKSHA PINJARAMUSALMAN OCCUPATION: MECHANIC GRAMCHAKTALA TEH. SONDVA (MADHYA PRADESH)MUSALMAN OCCUPATION: MECHANIC GRAMCHAKTALA TEH. SONDVA (MADHYA PRADESH)

2.ISAMUDDIN S/O KHUDABAKSHA PINJARA(MUSALAM), AGED ABOUT 53 YEARS,OCCUPATION: MACHENIC GRAM CHAKTALATEH. SONDVA DIST. ALIRAJPUR (MADHYAPRADESH)(MUSALAM), AGED ABOUT 53 YEARS,OCCUPATION: MACHENIC GRAM CHAKTALATEH. SONDVA DIST. ALIRAJPUR (MADHYAPRADESH)

3.JAVED@ CHANU S/O ISAMUDDIN PINJARAMUSALMAN, AGED ABOUT 25 YEARS,OCCUPATION: MACHENIC GRAM CHAKTALATEH. SONDVA DIST. ALIRAJPUR (MADHYAPRADESH)MUSALMAN, AGED ABOUT 25 YEARS,OCCUPATION: MACHENIC GRAM CHAKTALATEH. SONDVA DIST. ALIRAJPUR (MADHYAPRADESH)

4.BHURU S/O ISAMUDDIN PINJARA MUSALMAN,AGED ABOUT 22 YEARS, OCCUPATION:MACHENIC GRAM CHAKTALA TEH. SONDVADIST. ALIRAJPUR (MADHYA PRADESH)AGED ABOUT 22 YEARS, OCCUPATION:MACHENIC GRAM CHAKTALA TEH. SONDVADIST. ALIRAJPUR (MADHYA PRADESH)

5.SMT. SABIRA W/O IQBAL PINJARAM MUSALMAN,AGED ABOUT 50 YEARS, OCCUPATION:HOUSEHOLD GRAM CHAKTALA TEH. SONDVADIST. ALIRAJPUR (MADHYA PRADESH)AGED ABOUT 50 YEARS, OCCUPATION:HOUSEHOLD GRAM CHAKTALA TEH. SONDVADIST. ALIRAJPUR (MADHYA PRADESH)

6.SMT. SENAJ W/O ISAMUDDIN PINJARAMMUSALMAN, AGED ABOUT 40 YEARS,OCCUPATION: HOUSEHOLD GRAM CHAKTALAMUSALMAN, AGED ABOUT 40 YEARS,OCCUPATION: HOUSEHOLD GRAM CHAKTALA

TEH. SONDVA DIST. ALIRAJPUR (MADHYAPRADESH)

.....RESPONDENTS

(RESPONDENT NO.1 BY SHRI VIJAY SHARMA - ADVOCATE)

This petition coming on for admission this day, the court passed the following:

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ORDER

1. With consent heard finally.

2. By this petition preferred under Article 227 of the Constitution ofIndia the decree holder/petitioner has challenged the order dated 20.01.2020passed in MJC No.09/2016 by the First Civil Judge, Class-I, Alirajpur wherebyhis application under Order 21 Rule 32 of the CPC has been dismissed on theground that he has failed to prove any breach of the injunction decree by thejudgment debtors/respondent.

3. A perusal of the record shows that during the proceedings before theexecuting Court the judgment debtors had filed an application under Order 26Rule 9 of the CPC for demarcation of the suit property which was rejected bythe executing Court by order dated 07.04.2018.

4. Learned counsel for both the parties have advanced arguments asregards the dispute in the matter from which it is apparent that the same isprimarily to the effect as to whether the property over which construction ispurportedly being raised by the judgment debtors is owned by the decreeholder is owned by the judgment debtors. There appears to be a specificdispute as regards the boundaries and extent of the disputed property whichcan be better appreciated and considered by appointment of a localCommissioner as envisaged under Order 26 Rule 9 of the CPC. The executingCourt ought to have allowed the application under Order 26 Rule 9 of the CPC

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filed by the judgment debtors whereas it has erred in rejecting the sameparticularly when the said dispute is being raised by the judgment debtors also.

5. Thus in the available facts of the case, order dated 20.01.2020passed by the executing Court is set aside and the matter is remanded back to itto appoint a local Commissioner as envisaged under Order 26 Rule 9 of theCPC for demarcation of the disputed property and submission of spotinspection report. The said report upon being furnished by the localCommissioner along with the evidence, if any, to be led thereupon and theevidence already available on record shall be reconsidered by the executingCourt and thereafter the matter shall be decided afresh. It is made clear thatexcept for appointment of a local Commissioner and the evidence to be ledthereupon, the parties shall not be entitled to lead any independent evidence oftheir own.

6. The appeal is accordingly allowed and disposed off. It is made clearthat this Court has not expressed any opinion on merits of the case.

7. Since the parties are represented before this Court they are directed to appear before the executing Court on 19.02.2024 for which date no freshnotices shall be required to be issued to them.

ns

(PRANAY VERMA)

JUDGE

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