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2008 DIGILAW 1431 (JHR)

Siya Ram Agarwal v. State of Jharkhand

2008-12-11

D.G.R.PATNAIK

body2008
Order Petitioners in this writ application have prayed for quashing the order dated 8.10.2007 passed by the Munsif, Chaibasa in Title Suit No. 13 of 2005 whereby the petitioners' prayer made on 27.8.2007 for appointing a Pleader Commissioner, under Order 26 Rule 9 of the Code of Civil Procedure, to carry out a local inspection for ascertaining as to whether in the process of carving out new plots Nos. 138(a) to 138 (c) from the old plot No. 1290, an area of two decimals has been reduced and the same has wrongly been recorded in favour of the Chaibasa Municipality. 2. A counter affidavit has been filed on behalf of the respondent-State. 3. Heard learned counsel for the petitioners and also learned counsel for the respondents. 4. The petitioners had filed a suit before the court below for a declaration for his right, title and interest over the suit property described in Schedule 'A' to the plaint, which bears the present survey over plot No. 135 under Khata No. 129 having an area of 1.876 decimals with specific boundary. The petitioners' grievance is that this area of land has been wrongly recorded in the Revenue Records under plot No, 135 in the name of Chaibasa Municipality whereas it ought to have been recorded as portion of 138(a) to 138(c) in the petitioners name. The petitioners have challenged the aforesaid entries in the Revenue records as erroneous and incorrect and had made further prayer in the suit for a declaration that the entries in the Revenue Records in respect to the lands in question are incorrect. On the ground that for better appreciation of the facts to resolve the controversy, it would be appropriate that the lands be measured by the Survey Knowing Pleader Commissioner to find out as to whether the total area of the original area of old plot No. 1290 has been retained even after carving out of the new plots during the Municipal Survey of 1973 or whether any portion of the old Plot No. 1290 of which the petitioners were the recorded tenant, has been reduced, the petitioners had prayed before the Court below to appoint a Pleader Commissioner to carry out the measurement and make the assessment as required. By the impugned order the prayer was rejected by the court below. 5. By the impugned order the prayer was rejected by the court below. 5. The petitioners have assailed the impugned order on the ground that the learned court below, without appreciating the facts and without applying its mind, had rejected the petitioners' petition on the ground that such inspection and re-measurement is not required for adjudication of dispute since the dispute can be resolved on the basis of the materials available on record. Learned counsel for the petitioners submits that earlier a similar application was filed by the petitioners under Order 26 Rule 9 of the C.P.C. read with Section 151 of the C.P.C., which was rejected by the court below by its order dated 1.7.2006. The petitioners moved before this Court by filing a writ petition against the aforesaid order of rejection but withdrew the same with an intent to carry out certain amendments in their plaint for adding a further prayer for declaration that the entries in the record of rights pertaining to the land in dispute, prepared in the Municipal Survey of 1973 is wrong and erroneous. The prayer for amendment was rejected by the court below which had prompted the petitioners to approach this Court to file a writ petition. Pursuant to the orders passed by this Court in the subsequent writ application, the prayer for amendment was allowed and the further prayer as mentioned above was incorporated in the plaint. 6. Learned counsel for the respondent-State submits that since earlier a similar application of the petitioner under Order 26 Rule 9 of the C.P.C. was rejected by the court below by its order dated 1.7.2006, the petitioners cannot, therefore, raise the same issue all over again. 7. From the perusal of the impugned order of the learned court below, it appears -that the petitioners prayer was rejected only on the ground that an earlier application of the petitioners with the same prayer for appointing a Pleader Commissioner was rejected on 1.7.2006 and the subsequent application with same prayer is not tenable. A further ground on which the prayer has been rejected is that the land was once got measured and demarcated by a private Amin and therefore, no purpose would be served by carrying out a re-measurement by Survey Knowing Pleader Commissioner. 8. A further ground on which the prayer has been rejected is that the land was once got measured and demarcated by a private Amin and therefore, no purpose would be served by carrying out a re-measurement by Survey Knowing Pleader Commissioner. 8. From the explanation submitted by the petitioners even before the court below on the issue relating to the maintainability of the second application under Order 26 Rule 9 of the C.P.C., it appears - that though the petitioners had filed a writ application before this Court against the lower court's order of rejection of his earlier prayer and the writ application was withdrawn by him without decision on merits, the withdrawal was made on account of petitioners' need to amend their plaint in order to incorporate a further prayer for declaring the entries in the Revenue Records as incorrect. Unless the entry in the Municipal Records was challenged, the dispute could not have been finally resolved. It cannot, therefore, be said that the petitioner is prevented by the principles of res judicata from filing a second application after incorporating the additional prayer by way of amendment of their plaint. Furthermore, since the plaintiffs have claimed to discharge their onus by adducing evidence in support of their claim that an area of two decimals of land has been reduced in the process of carving out the new plots from the old plots in the Municipal Survey of 1973 and the same has been wrongly entered in the name of the Municipality, the petitioner should be given opportunity to adduce such evidence s2.tisf2~torily. The measurement and demarcation by the Survey Knowing Pleader Commissioner would be a proper and reliable evidence for appropriate adjudication of the dispute by the trial court. Merely because the process would cause further delay in the trial, the plaintiffs cannot be denied of an adequate opportunity to adduce evidence on their behalf. 9. Learned court below appears to have ignored these aspects while recording its impugned order. In the light of above facts and circumstances, the impugned order dated 8.10.2007 is hereby quashed. The matter is remitted back to the court below to record a fresh order on the petitioners' petition under Order 26 Rule 9 of the C.P.C.