Avanindra Kumar Singh JUDGMENT
Avanindra Kumar Singh, J.
1. This second appeal has been filed by the appellant/ plaintiff who has lost in both the Courts. It is submitted that both the Courts committed an error by not issuing Commission for inspection of the suit land under Order 26, Rule 9 of C.P.C. The First Appellate Court did not allow the application under Order 41, Rule 27 of C.P.C., therefore, prayer for admission.
2. Perused the record.
3. The appellant/ plaintiff Jagir Singh, deceased through legal representative Smt. Amarjit Kaur and others filed a civil suit No. 9/2011 against Indraraj Prajapati and State of M.P. for declaration of title, permanent injunction and for getting back the land which was encroached during pendency of the suit.
4. It is submitted that suit land is situated in village Saura, Khasra No. 1328, new khasra No. 2172, area 2 are. It was not disputed between the parties that defendant No. 1 Indraraj Prajapati had purchased a plot of dimension 30x 60 feet.
5. In very brief the case of the plaintiff was that they had sold a plot of dimension 1800 Sq. Ft to defendant No. 1 but he has encroached on his other land. The trial Court after considering the pleadings and evidence dismissed the suit of the plaintiff vide judgment and decree dated 16.07.2013.
6. Learned First Appellate Court in R.C.A. No. 64A-13 vide judgment and decree dated 26.10.2018 dismissed the appeal of the plaintiff, therefore, this second appeal has been filed on the ground that Commission was not issued. Application for additional evidence was also rejected.
7. Perused the record and considered the arguments.
8. Learned First Appellate Court vide order dated 26.10.2018 has allowed the application under Order 41, Rule 27 of C.P.C. of the appellant/ plaintiff for taking documents on record. It is seen that along with application copy of sale-deed dated 2.7.1960 (correct year seems 1968 from faint copy of document) by seller Badi Babu Bewa Halka in favour of Jagir Singh has been filed. Also copy of order dated 18.03.2008 in revenue case No. 37/A-6/2006-07 (Saranjit Singh Vs. State of M.P.). Khasra of land for the years 2008-13 and 2011-13 have been filed. It is seen that along with these documents as mentioned above, no application under Order 6, Rule 17 of C.P.C. to amend the pleadings to avail an opportunity of proving the document by way of additional evidence in appellate Court or for remand of the case has been made. In para 12 of the judgment, the learned First Appellate Court has referred to the documents which were produced by the appellant in the appellate Court and has correctly held that even on perusal of these documents it is not clear as to what parts of the Khasra has been sold previously by plaintiff and has therefore not given any benefit. In para 13 also the Court has correctly held that on the basis of sale-deed no presumption can be made regarding encroachment by defendant No. 1 on any specific part.
9. On perusal of record, it is seen that the learned trial Court as well as learned First Appellate Court have considered all legal and factual position and what has been stated above by this Court, it is seen that no Commission can be issued for ascertaining the boundaries of the suit land unless all necessary parties are on record and in this case it seems that all necessary parties required are not on record as the plaintiff/ appellant had purchased the suit land in the year 1968 whereas the suit was filed on 17.05.2007, therefore, situation or ground must have definitely changed in the intervening period. It is not the law that trial Court or First Appe........