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1985 DIGILAW 223 (PAT)

Prema Devi v. Ram Lakhan Sinha

1985-08-12

A.K.SINHA

body1985
JUDGMENT : Ashwini Kumar Sinha, J. - This application by the plaintiffs is directed against the ORDER :dated 7.5.1980, by which the report of the Pleader Commissioner was confirmed. The plaintiffs brought a suit (T.A. No. 13/74) and prayed for declaration of title and recovery of possession of a room. The plaintiffs' case was that the disputed third room was part and parcel of the plaintiffs land in plot no. 480. 2. The defence was that about 30 years ago the defendants got the said portion of plot no. 480 towards east, measuring 8 Dhurs, in exchange for another plot. 3. On 10.6.1975, the defendants filed a petition for appointment of Advocate Commissioner. The court below, on the aforesaid petition of the defendants, issued a writ to the Advocate Commissioner to report on the following points:- (i) Over which plots the house of the plaintiffs are standing. The area of each plot to be mentioned in the report. (ii) Whether the house of Ram Briksh Gope stands on portion of plot no. 494. If so its area to be mentioned in the report of the Commissioner. (iii) Over what area the house of the defendants on plot no. 479 and 480 is constructed. The area of each plot to be mentioned in the report of Commissioner. 4. The learned counsel for the petitioners, in ORDER :that his submission may be appreciated, persuaded me to look into the report of the Advocate Commissioner. It seems, during the measurement by the Advocate Commissioner on the points referred to him in the writ, the respective lawyers for the parties were always present. The Advocate Commissioner, ultimately, submitted his report. Thereafter an objection was filed by the plaintiffs-petitioners to the report of the Advocate Commissioner. The Advocate Commissioner was also examined and cross-examined. The lower Court, after hearing the parties, confirmed the report of the Advocate Commissioner. Thus the present revisional application by the plaintiffs -petitioners. 5. The learned counsel for the petitioners has mainly submitted that the report of the Advocate Commissioner should be set aside, as the report refers the matters extraneous to the suit. And, secondly, he has submitted that It has caused unnecessary harassment to the plaintiffs. 6. The Advocate Commissioner was directed to report on the points referred to him in the writ. In that view of the matter, the Advocate Commissioner had to report on those points. And, secondly, he has submitted that It has caused unnecessary harassment to the plaintiffs. 6. The Advocate Commissioner was directed to report on the points referred to him in the writ. In that view of the matter, the Advocate Commissioner had to report on those points. If those points included the matters extraneous to the suit, it was open to the plaintiffs-petitioners to move the higher court just then, which the plaintiffs-petitioners never did rather they participated in the measurement done by the Advocate Commissioner and the respective lawyers for the parties were always present during the course of measurement by the Advocate Commissioner. The Advocate Commissioner had to submit his report on the points, referred to him. No objection, whatsoever, was ever filed either before the Advocate Commissioner or before the court so long his measurement went on. It was only after the report went against the plaintiffs that the plaintiffs filed a petition to the court. I do not mean for a minute that the plaintiffs had no right to file an objection to the pleader Commissioner. But one thing is obvious that no murmur demur was made by the plaintiffs-petitioners during the entire period of measurement when the pleader Commissioner was measuring the lands on the points referred to above. 7. The learned counsel for the petitioners has relied upon a case reported in A. I. R. 1952 Patna 137 (Ram Kripal Missir & ors. V. Mahesh Pandey & ors). I am afraid, the facts of that case were completely different from the facts of the instant case and, in that view of the matter, the decision relied upon by the learned counsel for the petitioners does not help the petitioners. In that case the plaintiffs themselves had filed an application for appointment of Pleader Commissioner. The court asked the Pleader Commissioner to report on two points. Those two points, in the opinion of the plaintiffs, were extraneous to the suit and they rushed up to the High Court at once and the ORDER :of the learned Munsif' issuing a writ to, the Pleader Commissioner was set aside. It is true that a writ issued to a Pleader Commissioner for a report on something, which are extraneous to the subject matter of he suit, would tantamount to calamitous waste of time and money and Ii roving enquiry should not be ORDER :ed to be made. It is true that a writ issued to a Pleader Commissioner for a report on something, which are extraneous to the subject matter of he suit, would tantamount to calamitous waste of time and money and Ii roving enquiry should not be ORDER :ed to be made. In the instant case that is not the position. The application was not by the plaintiffs-petitioners but by the defendants. The plaintiffs knew what was prayed for by the defendants. The plaintiffs never filed objection to the application filed by the defendants and allowed the writ to be issued by the court. The court directed the Pleader Commissioner to report on the points referred to in the writ, yet the petitioners never objected. The petitioners all through co-operated/participated in the measurement done by the Advocate Commissioner. 8. For the aforesaid reasons, the decision relied upon by the learned counsel for the petitioners is not applicable to the facts of the present case. 9. Moreover, this confirmation of the Pleader Commissioner's report does not decide any right or obligation in controversy of the parties. It is only a piece of evidence on the record. In that view of the matter, as no right or obligation of the parties is decided by the confirmation of the Pleader Commissioner's report, this court, sitting in revision u/s 115 C.P.C. would not interefere with the nature of the ORDER :under revision. 10. However, the learned counsel for the petitioners submitted that the observation in the JUDGMENT : reported in A.I.R. 1972 Patna -499 (Ramgulam Choudhary & ors. v. Nawin Choudhari & ors.) to the affect that the confirmation or rejection of the Pleader Commissioner's report should not be interefered with by this Court-should be taken to be obiter dicta. I am afraid, the learned counsel for the petitioners has misconceived the observation in that decision. The learned counsel for the petitioners further submitted that as section 115 C.P.C. underwent an amendment in 1976, any observation in the aforesaid case (A.I.R. 1972 Patna 499) need not be looked into and the learned counsel relied upon the proviso added in 1976 to section 115 C.P.C" 11. The learned counsel for the petitioners further submitted that as section 115 C.P.C. underwent an amendment in 1976, any observation in the aforesaid case (A.I.R. 1972 Patna 499) need not be looked into and the learned counsel relied upon the proviso added in 1976 to section 115 C.P.C" 11. Having heard the learned counsel for the petitioners in detail, and having seen all the relevant papers, I am satisfied that even after the ORDER :is allowed to stand it would not occasion in a failure of justice or cause irreparable, injury to the plaintiffs-petitioners for the reason that if the plaintiffs so desire, they can file an application under ORDER :26 rule, 9 of C.P.C. and the court, on such an application being filed by the plaintiffs, would pass appropriate ORDER :s after hearing the parties. 12. In the result, the application fails and is dismissed. However, there will be no ORDER :as to cost, as no body appears for the other side.