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2018 DIGILAW 2148 (JHR)

Jadu Mahato v. State Of Jharkhand

2018-09-27

SHREE CHANDRASHEKHAR

body2018
JUDGMENT Shree Chandrashekhar, J. - Mr. Kalyan Banerjee, the learned counsel for the petitioner submits that deficit court fee has been deposited. 2. The learned counsel tenders a copy of the supplementary affidavit dated 26.09.2018 in respect of the surviving defects. 3. Taken on record. 4. The petitioner, who is plaintiff in Original Suit No. 443 of 2015, is aggrieved of order dated 18.08.2016 by which his application under Order XXVI Rule 9 & 10 CPC read with Section 151 CPC has been declined. 5. Original Suit No. 443 of 2015 has been instituted for a decree for declaration of the plaintiff''s right, title and interest over the suit schedule properties and for a decree for confirmation of his possession over the suit lands. In the pending suit an application under Order XXXIX Rule 7 CPC and under Order XXVI Rule 9 & 10 was filed by the petitioner. 6. Case pleaded by the plaintiff is that in the garb of removing encroachment he has been illegally dispossessed from the suit property, though he is in possession of the lands comprised under C.S. Plot No. 3501 and a part of C.S. Plot No. 3479 and the house constructed thereon for the last 30 years. The plaintiff has claimed indefeasible title over the suit lands which had come initially in possession of his father. 7. Order XXXIX Rule 7 CPC provides for inspection of any property which is the subject matter of the suit and for this purpose the Court may authorise any person to enter upon or into any land or building in the possession of any other party to the suit. Order XXVI Rule 9 also provides that for elucidating any matter in dispute if the Court deems a local investigation necessary it may appoint a Commission and seek report. Rule 10 to Order XXVI CPC lays down the procedure which a Commissioner appointed under Rule 9 shall follow. 8. In his application under Order XXXIX Rule 7 and under Order XXVI Rule 9 & 10 CPC the plaintiff has pleaded that defendant no. 6, who is the Circle Officer, Dhanbad issued a notice on 01.02.2016 directing the plaintiff to remove encroachment over 3 decimals land which necessitated filing of the aforesaid application by the plaintiff. 8. In his application under Order XXXIX Rule 7 and under Order XXVI Rule 9 & 10 CPC the plaintiff has pleaded that defendant no. 6, who is the Circle Officer, Dhanbad issued a notice on 01.02.2016 directing the plaintiff to remove encroachment over 3 decimals land which necessitated filing of the aforesaid application by the plaintiff. When the aforesaid application under Order XXXIX Rule 7 CPC was heard on 04.02.2016 the learned Additional Pleader was directed to file show-cause reply. In the meantime, apprehending illegal demarcation of his house and dispossession the petitioner came to this Court in W.P.(C) No. 654 of 2016 challenging notice dated 01.02.2016 issued by the Circle Officer-respondent no. 6. The writ petition, however, stood disposed of by an order dated 08.02.2016 with liberty to the petitioner to approach the civil court or the forum under B.P.L.E. Act and the respondent no. 6 was directed to not to take any coercive step against the petitioner for a period of two weeks. However, the respondent no. 6 on 29.02.2016 taking benefit of the vacant appellate Court under the B.P.L.E. Act evicted the petitioner from his house and sealed the main gate; B.P.L.E. Appeal No. 02 of 2016 filed by the petitioner could not be heard as the appellate Court did not sit for 3 weeks during that relevant period. The stand taken by the petitioner in his application dated 01.03.2016 was resisted by the respondents on the ground that through the aforesaid application the plaintiff cannot be permitted to collect evidence. The defendants have asserted that the plaintiff has himself handed over vacant possession of his house. 9. Original Suit No. 443 of 2015 instituted by the petitioner is a suit under Section 26 of the Code of Civil Procedure for declaration of title and confirmation of possession. 10. In the aforesaid state of affairs, for elucidating the real truth appointment of a Pleader Commissioner was necessary, however, the trial judge has dismissed the plaintiff''s application for appointment of a Pleader Commissioner on the ground that possession of the plaintiff''s house has been taken over by the respondent no. 6. Evidently, approach of the learned trial judge was erroneous. In my opinion, this was the most appropriate case for appointment of a Pleader Commissioner [refer: " Haryana Waqf Board vs. Shanti Sarup and Others , (2008) 8 SCC 671 " ]. 11. 6. Evidently, approach of the learned trial judge was erroneous. In my opinion, this was the most appropriate case for appointment of a Pleader Commissioner [refer: " Haryana Waqf Board vs. Shanti Sarup and Others , (2008) 8 SCC 671 " ]. 11. Viewed thus, and for the reasons indicated hereinabove finding serious infirmity in the impugned order dated 18.08.2016 it is set-aside. Let a Pleader Commissioner be appointed by the trial judge within a period of two weeks who, after fixing a date of local inspection of the suit premises, shall submit a report after due notice to the defendants. 12. The writ petition stands allowed, in the aforesaid terms.