Gurpal Singh Ahluwalia, J.

1. This second appeal under Section 100 CPC has been filed against the judgment and decree dated 16.05.2019 passed by III Additional District Judge, Hoshangabad in RCA No. 37/2017 arising out of judgment and decree dated 05.07.2017 passed by II Civil Judge, Class -2 Hoshangabad in RCSA No. 1000041A/2015 by which the suit filed by the plaintiff/ respondent No. 1 for declaration of title and permanent injunction has been decreed.

2. The present appeal has been filed on the following proposed substantial question of law.

"A. Whether the suit is barred by limitation

B. Whether the suit is barred in view of section 257 of the M.P. Land Revenue code

C. Whether the courts below could have proceeded to decide the suit in the absence of a spot inspection report through a court appointed Commissioner under Order 26 Rule 9 C.P.C."

3. It is submitted by the counsel for the appellant that the present is a case of boundary dispute and it is well established principle of law that in such a situation the trial Court must appoint a local Commissioner to resolve the boundary dispute and, in the present case, the power under Order 26 Rule 9 CPC was not exercised by the trial Court. It is submitted that although none of the parties have ever moved an application for appointment of a local Commissioner; but, it is the duty of the trial Court to appoint a local Commissioner even in absence of application under Order 26 Rule 9 of CPC.

4. Considered the submissions made by the counsel for the appellant.

5. The respondent/plaintiff filed a suit for declaration of title and permanent injunction. It is the case of the respondent that he is the owner and in possession of his ancestral property situated in Tahsil Babai, District Hoshangabad bearing Khasra No. 110 area 1.331 hectares. It is the case of the plaintiff that the land in dispute was originally recorded in the name of his grandfather Motiram and after his death, his son Munua succeeded the land and after the death of Munua, plaintiff, who is son of Munua, has inherited the property and accordingly he is in peaceful possession of the plaintiff. It was submitted that the land of defendant No. 1 Radheshyam Saini is situated on the western side of the land belonging to the plaintiff. The defendant No. 1 Radheshyam Saini got the land demarcated in the year 2008 and it was found that both the parties are in possession of their respective lands. Thereafter, in the year 2014 the plaintiff moved an application for demarcation and an illegal gratification of Rs. 5000/- was demanded by R.I. for carrying out demarcation. However, the plaintiff did not pay the said amount, therefore, the Revenue Inspector challenged the plaintiff that now he would teach a lesson to him. Accordingly, the Revenue Inspector instigated the defendant no. 1 to move an application for re-demarcation on the ground that proper demarcation was not carried out in the year 2008 and without demarcating the land, the Revenue Inspector Tripathi pointed out verbally that half of the land belonging to the plaintiff belongs to the defendant no. 1 and also directed him to take possession of the standing crop. The said fact was complained by the plaintiff to the higher officers; but, all his complaints went in vain. At the instigation of Revenue Inspector Tripathi, the defendant no. 1 started making efforts to take forcible possession of the land which was avoided with the help of villagers on the ground that the crop belonging to the plaintiff is standing. However, the defendant no. 1 started pressuring and also started threatening the labours of the plaintiff. The plaintiff also made a complaint to the Collector, Hoshangabad, S.D.O. as well as S.H.O. Police Station Babai, District Hoshangabad; but, no response was given and the Babai Police suggested the plaintiff to approach the Court. On 24.6.2014 and 21.7.2014 the defendant no. 1 tried to take forceful possession of the land belonging to the appellant and, accordingly, the cause of action has arisen compelling the plaintiff to file the suit for declaration of title and permanent injunction.

6. The appellant/defendant no. 1 filed his written statement and claimed that he is owner of the disputed property and it was denied that the disputed property is an ancestral property of the plaintiff. Defendant no. 1 is owner and in possession of the land in dispute and he has also obtained loan for agricultural purposes. The defendant no. 1 got the land demarcated on 24.6.2014 and it was found that plaintiff is in unauthorised possession of Khasra No. 111/1 and 111/2 belonging to the defendant no. 1. Thus, it was claimed that the plaintiff has tried to encroach upon the land belonging to the defendant no. 1. The demarcation was done in presence of the villagers.

7. The Trial Court after framing issues and recording evidence decreed the suit. The trial court also came to a conclusion that the defendant no. 1 has failed to prove that a proper demarcation was done in the year 2014 and the decree was passed declaring that the plaintiff is owner and in possession of Khasra No. 110 area 1.331 hectares and a decree for permanent injunction was granted against the appellant thereby restraining him from interfering with the peaceful possession of the appellant either by himself or through agents.

8. Being aggrieved by the judgment and decree passed by the courts below, the appellant preferred an appeal which too has been dismissed by the court of III Addl. District Judge, Hoshangabad by judgment and decree dated 16.5.2019 passed in R.C.A. No. 37/2017.

9. It is submitted by counsel for the appellant that since the dispute in question was a boundary dispute, therefore, the Commissioner should have been appointed.

10. Considered the submissions made by counsel for the parties.

11. In order to hold that the dispute is a pure boundary dispute, the parties must point out that there is no title dispute. In the present case, on one hand the plaintiff had claimed his title over Khasra No. 110 and claimed that defendant no. 1 is trying to forcibly take possession of some part of his land whereas according to the defendant no. 1 he is the owner of the land in dispute.

12. By the impugned decree the appellant has been restrained from interfering with the peaceful possession of the respondent no. 1 over Khasra No. 110 either by himself or through his agents and the respondent no. 1 has been declared to be the owner and in possession of Khasra No. 110. Admittedly, no application was filed by any of the parties before the trial court for appointment of local Commissioner for demarcation.

13. The claim of the defendant no. 1 that after he got the land demarcated in the year 2014, he came to know that the respondent plaintiff has encroached upon certain part of Khasra No. 111/1 and 111/2.

14. During the course of arguments it was fairly conceded by counsel for the appellant that no final order under section 129 of the M.P.L.R. Code was passed by the Tahsildar. Even no demarcation report was placed by the defendant no. 1/appellant. Unless and until an objection is invited on the demarcation carried out by the revenue authority and said objections are decided by the Tahsildar and a final order is passed under section 129 of the M.P.L.R. Code, it cannot be said that demarcation proceedings had come to an end. In absence of any demarcation report as well as in absence of any final order under section 129 of the M.P.L.R. Code, this Court is of the considered opinion that the appellant/defendant no. 1 had miserably failed in establishing that the respondent/plaintiff had encroached upon any part of his land.

15. As already pointed out by impugned judgment and decree the appellant has been restrained from interfering with the peaceful possession of the respondent/plaintiff in respect of Khasra No. 110 situated in village Sangakhedi Kalan, Tahsil Babai, District Hoshangabad. It is not the case of the appellant that he is the owner of the said Khasra No. 110. On the contrary his claim is that he is the owner of Khasra No. 111/1 and 111/2. Thus, rights of the appellant have not been adversely effected by the decree passed by the court below. The parties had contested the suit as if it is a suit for declaration of title. It is true that in a case of boundary dispute the matter can be resolved by appointment of Commissioner; but, in the present case, none of the parties ever moved any application either before the trial court or before the appellate court. By referring to the judgment of a coordinate Bench of this court in the case of Jaswant Vs. Deendayal, reported in 2011 (2) MPLJ 576 [LQ/MPHC/2011/375] , it is submitted by counsel for the appellant that whether or not any such application is filed, it is the duty of the trial court to appoint a local Commissioner to get the land demarcated. However, it is suffice to mention that the facts of the present case are distinguishable for the simple reason that the present suit was contested as a title suit and, therefore, there was no occasion for the trial court or to the appellate court to exercise its power under Order 26 Rule 9 CPC.

16. No arguments were advanced in respect of other substantial question of law which have been proposed by the appellant.

17. Considering the totality of facts and circumstances of the case, this Court is of the considered opinion that no substantial question of law arises in the present case.

18. Ex consequentia, the judgment and decree dated 16.05.2019 passed by Third Additional District Judge, Hoshangabad in RCA No. 37/2017 so also judgment and decree dated 05.07.2017 passed by Second Civil Judge, Class -2 Hoshangabad in RCSA No. 1000041/2015 are hereby affirmed.

19. Appeal fails and is hereby dismissed in limine.