RAMJIVAN Vs. SATYANARAYAN

JUDGEMENT

(1.) THIS petition filed under Article 227 of the Constitution takes exception to the order dated 28.10.2014, whereby the Court below has rejected the application of the petitioner/plaintiff preferred under Order 26 Rule 9 CPC.

(2.) IN a suit for declaration and permanent injunction, the petitioner has stated that he is owner of the land in survey No. 663, whereas the respondents No.1 to 3 herein are owners of Survey No. 658. It is contended by Shri Bohre, learned counsel for the petitioner that a road is moving through the survey No. 663. The petitioner has filed a map (page 16), which shows the same. Another map is filed by respondents (page 22) which shows that movement of the road is from a different place. Since there exist two different maps which are diametrically opposite to each other, the spot inspection be conducted through concerned Tahsildar. The Court below rejected the said application. Criticizing the said order and by placing reliance on (Kamal Singh and another Vs. Roop Singh (since dead) through L.Rs. and another, 2011 3 MPLJ 333 ), Shri Bohre stated that when there is no agreed map and there are two different maps of the land in question, the Court below should have appointed a Commissioner/Tehsildar to gave a proper report.

(3.) PRAYER is opposed by Shri S.K.Shrivastava, learned counsel for respondents No. 1 to 3. He placed reliance on (Suryabhan Singh Vs. State of M. P.,2006 3 MPWN 125) and (Ashok Kumar Patel and others Vs. Ram Niranjan and others, 2007 3 MPWN 123). He further stated that as per petitioner's own map (page16), it is clear that the road is not travelling through his survey number. The respondents are not claiming any right or title on survey No. 663 and, therefore, Commissioner need not be appointed.