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2007 DIGILAW 312 (PAT)

Rama Shankar Prasad v. Fraternity Club, Gopalganj

2007-02-09

RAMESH KUMAR DATTA

body2007
Judgment Ramesh Kr.Datta, J. 1. Heard Mr. Mahesh Narayan Parbat, learned counsel for the petitioner, Mr. Nityanand Mishra, learned counsel for opposite party no. 1 and Mr. Ranjeet Kumar, learned counsel for opposite party nos. 5, 14 and 16. 2. The petitioner has filed this revision application against the order dated 9.11.2000 passed by Subordinate Judge-VII, Gopalganj in Title Suit No. 161/1990 (Baij Nath Singh vs. Ashok Singh and Ors.), by which the petition filed by the petitioner under Order 26 Rule 9 of the Code of Civil Procedure for appointment of Pleader Commissioner for local inspection of the disputed land has been rejected. 3. The plaintiff-opposite party no. 1 filed the said True Suit with respect to plot nos. 988 and 990 appertaining to khata nos. 82 and 166 respectively having an area of 3 Katha 10 Dhur and 3 Katha 15 Dhur total 7 Katha 5 Dhur for declaration of his title over the said lands and for further declaration that the defendants have no title on it and their possession is as trespassers and defendants 3rd set are tenants of plaintiff over the land in dispute who are defaulter and a prayer has been made against them for recovery of arrears of rent as well as a decree of eviction as well as other consequential arrears. 4. The case of the plaintiff-Fraternity Club is that the said club was established for the purpose of meeting place of members of the said club and after receiving donations the disputed land was purchased in the name of Sri Kishun Sahay, a member of the Executive Committee of the said club by two sale deeds dated 1.2.1929 for the purpose of construction of a house of club. Later on from the collection of fund from public a small karkat shed house was constructed on it. Subsequently, the said house was let out to ancestor of defendant 3rd set for keeping lime in it. Subsequently, the same was demolished and defendant 1st set started shop of Asbestus without the permission of plaintiff in violation of the terms of tenancy. Later on there was some dispute between said Shri Kishun Sahai and the Club with regard to the title over the said lands and ultimately the mutation matter was decided in favour of the club. Subsequently, the same was demolished and defendant 1st set started shop of Asbestus without the permission of plaintiff in violation of the terms of tenancy. Later on there was some dispute between said Shri Kishun Sahai and the Club with regard to the title over the said lands and ultimately the mutation matter was decided in favour of the club. There was other dispute between the plaintiff, defendant 1st, 2nd and 3rd set for which proceedings under Sec.145 Cr.P.C. and collusive eviction suit had also been filed. The further case was that taking benefit of the illness of the Secretary of the Club, the defendant 3rd and 4th sets kept their gumties hither and thither over an area of 1- or 2 dhur each of the disputed land and defendant no. 21 took possession of the house of the club and started running hotel in it and dispossessed the plaintiff. Thereafter the suit was filed. 5. The defendant no. 17-petitioner, who had allegedly made encroachment over 1 or 2 dhur of land by putting gumti over the same, had filed his separate written statement in the suit. He stated that he had filled up the ditch over the part of the two plots in question and was in possession over 1 katha 5 dhur of land measuring 60 feet x 36 feet as stated in the written statement and had prayed therein to dismiss the said suit claiming title by adverse possession over the same. However, no counter claim was filed by the defendant in this regard. Ten years after filing of the suit the petitioner filed an application under Order 26 Rule 9 of the Code of Civil Procedure praying for appointment of an Advocate Commissioner for ascertaining the possession of the two plots in question. The plaintiff, opposite party no. 1 and the defendant nos. 4 to 9 and defendant no. 3 filed their objections to the same. The stand taken by plaintiff opposite party no. 1 was that the matter regarding extent of encroachment committed within the said land was not in issue in the suit and the only thing to be considered was whether encroachment had been made over the lands which belong to the plaintiff. The defendant nos. 4 to 9 took a plea that they had earlier filed Title Suit No. 16/91 for declaration of title vis-a-vis defendant no. The defendant nos. 4 to 9 took a plea that they had earlier filed Title Suit No. 16/91 for declaration of title vis-a-vis defendant no. 17 and the present application has been filed for a collateral purpose in order to collect evidence for the purpose of said title suit by defendant no. 17, the petitioner. The further stand taken by the objectors was that the application has been filed after undue delay and it will further delay the disposal of said suit. 6. After hearing the parties the court below came to the conclusion that by the appointment of the Advocate Commissioner, no light can be thrown on any of the issues that has been framed in the suit and further that the application has been filed for a collateral purpose and so far as the Court is concerned, it has to decide the dispute between the parties and not to settle the inter se dispute between the defendants themselves. It was also held that the application had been filed to collect evidence by defendant no. 17 against the other defendants for the purpose of other title suit pending between them and as such the application was rejected. 7. Learned counsel for the petitioner submitted that there was a dispute between the defendant no. 17, the petitioner and the plaintiff, opposite party no. 1 regarding extent of land in possession of the petitioner since the plaintiff claimed encroachment by the petitioner over only two dhurs whereas the claim of the petitioner was over 1 katha 6 dhur of the land. The further submission of the learned counsel for the petitioner is that if the actual state of affairs at the spot is known then it will help the court in deciding the matter between the parties and thus, it was essential to have allowed the said application and appointed Advocate Commissioner to make an investigation and present a report before the Court. It is further submitted that the court below has committed an error of jurisdiction in holding that the appointment of Advocate Commissioner will not affect the merit of the case and so far as this part of land is concerned, it is directly disputed between the plaintiff and defendant no. 17. It is further submitted that the court below has committed an error of jurisdiction in holding that the appointment of Advocate Commissioner will not affect the merit of the case and so far as this part of land is concerned, it is directly disputed between the plaintiff and defendant no. 17. The last submission of the learned counsel for the petitioner is that since no prejudice was being caused to any party therefore, the Advocate Commissioner should have been appointed by the Court. 8. Learned counsel for the plaintiff opposite party no. 1, on the other hand, stated that application under Order 26 Rules 9 and 10 has definitely been moved with an oblique motive at belated stage more than 10 years after the suit was filed and after the plaintiffs evidence was closed and it is not at all in issue as to the extent of encroachment made by the defendant-petitioner because once the title of the petitioner is decided in the matter, then the encroachment whether more or less will have to be removed from the same. Learned counsel also reiterated the fact that it has been filed for collateral purpose for collecting evidence in another suit filed by defendant nos. 4 to 9 against the petitioner claiming that he is a tenant and therefore, the same has rightly not been allowed by the court below. 9. Learned counsel for opposite party nos. 5, 14 and 16, on the other hand, has drawn the attention of this Court to the last part of the written statement filed on behalf of the petitioner where he has only claimed that the suit should be dismissed with costs and no other issue regarding his having obtained adverse possession over the land in question should be decided. It is further submitted that no such issue has been framed by the court below as to whether the petitioner encroached upon 1 katha 6 dhur or less land. The further submission is that no counter claim with respect to the same plot of land has been raised in the written statement and only mere facts have been stated therein and thus rightly it has not been admitted as an issue in the suit. The further submission is that no counter claim with respect to the same plot of land has been raised in the written statement and only mere facts have been stated therein and thus rightly it has not been admitted as an issue in the suit. Learned counsel also reiterated the fact that the application has been filed at a belated stage after more than 10 years of filing of the suit and the evidence of the plaintiff having been closed. The further submission of the learned counsel is that as a matter of fact, nowhere in the written statement the defendant no. 17 has stated as against whom he claims adverse possession. They admittedly have filed Title Suit No. 161/1991 for declaration of their title in which the defendant no. 17 is also a defendant and he has merely filed the oresent application to collect evidence in his favour. It is submitted that the dispute is essentially between the plaintiff and defendant 2nd and 3rd sets and defendant 4th set and the petitioner have no role to play at all in the suit and the matter hinges inter se between the plaintiff and defendants 2nd and 3rd set. The other submission is that the dispute is to be seen in terms of the plaint and the present issue that has been raised by filing an application is essentially a dispute between the two defendants only and therefore, the same has rightly been rejected by the court below. 10. Learned counsel for the petitioner in support of the case of the petitioner has sought to rely upon certain decisions of the Andhra Pradesh High Court, this Court and the Orissa High Court. The first case cited by the learned counsel is of Andhra Pradesh High Court in the case of P. Pedda Saidaiah vs. T. Padmavathi Bal: 1997-ALT-5-818. In the said case the dispute was between the plaintiff and defendants who were owners of adjacent plots of land and the plaintiff contended that the defendants were trying to encroach upon his land. The first case cited by the learned counsel is of Andhra Pradesh High Court in the case of P. Pedda Saidaiah vs. T. Padmavathi Bal: 1997-ALT-5-818. In the said case the dispute was between the plaintiff and defendants who were owners of adjacent plots of land and the plaintiff contended that the defendants were trying to encroach upon his land. Under the said circumstances, it was held by the Andhra Pradesh High Court that for a proper decision of the case it was essential to appoint an Advocate Commissioner to demarcate the land owned by the petitioners as well as the respondents with the help of the Mandal Surveyor as per the documents held by them with reference to the village map and tippons if available and accordingly, a direction was issued. Thus, the said case is not at ail on the same footing as the case of the present petitioner since in the present matter there is no dispute that two separate persons held different plots of land adjacent to each other, rather the petitioner is claiming adverse possession over a part of land out of the plots owned by the plaintiff opposite party no. 1. 11. The other decision relied upon by the learned counsel for the petitioner is also of the Andhra Pradesh High Court in the case of Mallikarjuna Srinivasa Gupta vs. K. Sheshirekha: 2006 ALD-3-362 in which relying upon the earlier decision in the case of P. Pedda Saidaiah vs. T. Padmavathi Bal (supra) on the same facts that plaintiff and defendants owned adjacent plots in which it was claimed that the defendants had encroached upon, it was directed that the Advocate Commissioner be appointed for demarcating the same. For the same reasons as stated above, this decision also cannot be of any assistance to the petitioner. 12. For the same reasons as stated above, this decision also cannot be of any assistance to the petitioner. 12. Learned counsel further sought to rely on a decision of learned Single Judge of this Court in the case of Ram Shekhar Singh vs. State Bank of India & Ors.: 2005(2) PUR 524, in which case the Court came to the finding that the plaintiffs having auction purchased the suit premises which was at the relevant time under the occupation of the State Bank of India as a tenant from before the auction purchase, therefore, it was quite natural that plaintiff might not be aware of full configuration of suit premises and hence to avoid the vagueness and to come to a definite conclusion about actual physical position of suit premises, it was necessary that a Pleader Commissioner should have been appointed to report about the actual position of the suit premises. Under the said circumstances, direction was issued for appointment of Pleader Commissioner. Again the facts of the said case are clearly different from that of the present matter wherein adverse possession within the plot of the plaintiff is being claimed by the petitioner as a defendant. 13. Learned counsel lastly sought to rely upon a decision of the learned Single Judge of the Orissa High Court in the case of Debendranath Nandi vs. Natha Bhuiyan: AIR 1973 Orissa 240. In the said case the dispute was whether the suit house was situated on plot no. 327 belonging to the plaintiff or on plot no. 323 which had been taken on lease by the defendants from the District Board. In that case earlier a Civil Court Commissioner had been appointed to ascertain the said fact and relying upon his report the suit was decided but at the appellate stage the Court rejected the Commissioners report and proceeded to decide the matter on the basis of evidence available on the record. In the said circumstances, the High Court came to the conclusion that once the earlier report of the Commissioner on local investigation had been rejected and in view of the rival claims made by the parties, it was absolutely necessary to get a fresh Commissioner report on local investigation and the appellate court ought not to have decided the matter finally without directing appointment of a fresh Commissioner for the said purpose. It is thus, clear from the facts of the said case also that the said matter has also been decided in different circumstances where the very location of the house in question over one or the other plot was involved and it was necessary to appoint a Pleader Commissioner. 14. In the present matter I find that the court below after considering all aspect of the matter had arrived at a definite finding that the appointment of the Advocate Commissioner will not throw light on any of the issues that have been framed in the suit and thus, he has exercised his discretion not to appoint the Advocate Commissioner. The said discretion appears to have been rightly exercised particularly in view of the stand taken by the defendants that the application has been filed for a collateral purpose. Even if it is held that the discretion ought to have been exercised in the other way since no prejudice was being caused to any other party, this Court in civil revisional jurisdiction will not interfere with the exercise of discretion by the Court below where no jurisdictional error is committed by the court below in arriving at the conclusion and the order passed by the court below is within its jurisdiction. Thus, there is no occasion to interfere with the same in exercise of powers under Sec.115 of the Code of Civil Procedure. 15. For the said reasons, there is no merit in this civil revision application and it is accordingly dismissed. 16. However, it goes without saying that if in future the court finds that to elucidate the issue involved in the case, at any particular time, it is necessary to appoint Advocate Commissioner it would be free to do so on the application of any of the parties.