Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 2545 (JHR)

Ghanshyam Mandal v. Nand Lal Mandal

2018-11-26

SHREE CHANDRASHEKHAR

body2018
JUDGMENT 1. The petitioner, who is the plaintiff in Title Suit No. 101 of 2014, is aggrieved of order dated 09.08.2016 by which his application under Order XXVI Rule 9 CPC has been rejected. 2. Briefly stated, Title Suit No. 101 of 2014 has been instituted for a decree for declaration of the plaintiff''s right, title, interest and possession over the suit land. Though it is not an alternative prayer, the plaintiff has also prayed for recovery of possession of the suit land through the process of the Court. Another relief sought in the plaint is for restraining the defendants and their agents/representatives from selling the suit land. Before the suit proceeded under Order X CPC, an application under Order XXVI Rule 9 CPC was filed by the plaintiff for appointment of a Survey Knowing Pleader Commissioner on an allegation that the defendants have been trying to encroach upon the suit land as a result of which passage of the plaintiff as well as the general public has been obstructed. In paragraph no. 4 of the application dated 17.04.2015, the plaintiff has asserted that the defendants are ready to sell the suit land which is in his possession. 3. Mr. Anil Kumar Sinha, the learned counsel for the petitioner submits that in view of the plaint averments and the allegation in the application under Order XXVI Rule 9 CPC, it was necessary to ascertain the factual status of the suit land. 4. Order XXVI Rule 9 CPC provides that to elucidate any matter in dispute which cannot be properly examined by the Court, if the Court deems proper a Commissioner may be appointed which shall submit its report on the matter in dispute. The allegation that the defendants are trying to encroach upon the suit land which is in possession of the plaintiff would have no bearing on the relief for injunction prayed in the plaint; the plaintiff is seeking an order to restrain the defendants and their agents/representatives from selling the suit land. And, whether the defendants are trying to encroach upon the suit land or not cannot be the primary issue in the suit; the suit is for a declaration of the plaintiff''s right, title, interest and possession. And, whether the defendants are trying to encroach upon the suit land or not cannot be the primary issue in the suit; the suit is for a declaration of the plaintiff''s right, title, interest and possession. Not only that, the plaintiff, who has made a prayer for recovery of the possession of the suit land through the process of the Court, cannot plead that the defendants are trying to encroach upon the suit land. The suit is at the initial stage and, as noticed above, it has yet not proceeded under Order X CPC. The issues have yet not been settled in the suit and the application under Order XXXIX Rule 1 & 2 CPC has already been allowed. In the above facts, the trial judge has rightly dismissed the application under Order XXVI Rule 9 CPC. 5. Finding no infirmity in the impugned order dated 09.08.2016, the writ petition is dismissed.