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2013 DIGILAW 2524 (ALL)

Nathoo Ram v. Sumitra Devi

2013-10-04

SANJAY MISRA

body2013
JUDGMENT Sanjay Misra, J. Heard Sri Vishnu Gupta learned counsel for the petitioner and Sri R.K. Pandey learned counsel for the contesting plaintiff respondents. With the consent of learned counsel for the parties this writ petition is being decided finally today itself. 2. According to Sri Vishnu Gupta learned counsel for the petitioner the Suit no. 101 of 1986 was decreed on 09.09.1999 where against the defendant petitioner filed Civil Appeal no. 36 of 1999 (Nathuram Vs Sangam Lal and others). In the said appeal the petitioner appellant filed an application paper no. 12-C (2) dated 27.02.2013 for issue of Amin Commission under Order XXVI Rule 9 and 10 CPC. He states that such application was made after the matter was remanded to the first appellate court by an order dated 21.08.2004 passed by the High Court in Second Appeal no. 981 of 2004. 3. According to him in the second appeal the matter was remanded to the first appellate court to decide the question of title. Learned counsel states that in the plaint the property in dispute was not properly described and therefore the defendant petitioner filed the application for issue of amin commission to identify the property for the reason that although the plaintiff respondent claimed that the defendant petitioner was a tenant but the claim of the defendant petitioner was as a co-sharer. According to him by the impugned order the only reason for rejection of the application under Order XXVI Rule 9 and 10 CPC is because of the remand of this case from the High Court and it being an old case it will cause delay hence the application cannot be allowed. 4. Sri R.K. Pandey learned counsel for the contesting plaintiff respondent has disputed the submission and has submitted that there was no occasion for issuing a commission under Order XXVI Rule 9 and 10 CPC for the reason that the property was sufficiently described in the plaint which was a suit for eviction and arrears of rent filed by the plaintiff respondent against the petitioner and the property in question has been sufficiently described by boundaries in the plaint. 5. 5. Having considered the submission of learned counsel for the parties and perused the impugned order the reason given in the impugned order for rejecting the application of the defendant petitioner filed under Order XXVI Rule 9 and 10 CPC is quoted here under: - ^^ekuuh; mPp U;k;ky; ds mijksDr fu.kZ; dk eUrO; i=koyh esa miyC/k vfHkdFku ,oa lk{; ,oa ekSf[kd ,oa vfHkys[kh; lk{; ds vk/kkj ij izFke vihyh; U;k;ky; }kjk viuk fu.kZ; fd;s tkus ls gSA izFke vihyh; U;k;ky; ds lEeq[k bl Lrj ij ;fn ekSds dh vk[;k tfj, vehu dfr'uj /kkjk 76 lifBr vkMZj 26 fu;e 09 ,oa 10 lh-ih-lh- eWxk;k x;k rks ekuuh; mPp U;k;ky; ds fu.kZ; ,oa funsZ'k ,oa eUrO; ls foijhr gksxkA vr% orZeku vihy ds rF; ,oa ifjfLFkfr;ksa dks n`f"Vxr j[krs gq, izLrqr izkFkZuki= fof/k o U;k; lEer u gksus ds dkj.k fujLr fd;s tkus ;ksX; gSA** 6. From a perusal of the aforesaid it appears that the first appellate court was of the view that it has to decide the appeal on the basis of oral and documentary evidence already available on record and insofar as issue of amin commission is concerned since the matter has been remanded by the High Court to decide the question of title then issue of amin commission would be against the said direction and hence he has rejected the application under Order XXVI Rule 9 and 10 CPC filed by the defendant petitioner. 7. The aforesaid view taken by the appellate court cannot be held to be illegal in any manner whatsoever for the reason that if the submission of the defendant petitioner that the property has not been properly described in the plaint and the plaintiff has not chosen to properly identify the property it is the plaintiff who may suffer and not the defendant. Therefore to say that the amin commission ought to have been issued at the instance of the defendant petitioner in a suit filed for arrears of rent and eviction of the defendant petitioner wherein the title of the parties is to be decided under directions issued by the High Court would not be correct. A decision on title claimed by the parties on the basis that they are co-sharers does not involve possession since the claim as a co-sharer by inheritance from a common ancestor is not based on possession. 8. A decision on title claimed by the parties on the basis that they are co-sharers does not involve possession since the claim as a co-sharer by inheritance from a common ancestor is not based on possession. 8. In view of the aforesaid circumstances no error can be found in the impugned order. The writ petition has no merit. It is accordingly dismissed. 9. No order is passed as to costs.