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2018 DIGILAW 2581 (JHR)

Bhagwan Mishra v. Jaswant Singh

2018-11-27

SHREE CHANDRASHEKHAR

body2018
JUDGMENT Shree Chandrashekhar, J. - The petitioner, who is the defendant no.1 in Title Suit No.37 of 2016, is aggrieved of order dated 02.08.2018 by which his petition dated 17.01.2018 for appointment of ''Advocate Commissioner'' has been rejected. 2. Briefly stated, Title Suit No.37 of 2016 has been instituted for a decree for declaration of the plaintiff''s title over the schedule-A property. The plaintiff has claimed that he has three brothers and three sisters and schedule-A property was purchased by his father namely, Mela Singh on 22.05.1924 through khuski kewala. In an oral settlement the suit property was allotted to the plaintiff. A power of attorney was executed by the plaintiff on 30.01.2015 in favour of defendant no.2 authorizing him to sell a part of the suit property and the defendant no.2 executed a sale-deed in favour of defendant no.3 for 2 1/5th decimals of land in plot no.443. It was on 10.05.2016 and 18.05.2016 when the plaintiff who was trying to dig a well in the suit property was objected by the defendant no.1 and that is the cause of action disclosed in paragraph no.8 of the plaint. 3. The petitioner, who is the defendant no.1, filed his written statement setting-up a claim that by virtue of a registered deed of settlement dated 28.09.1929 executed by the then landlord of ''Ramgarh Raj'' in favour of his father namely, Narayan Mishra the suit land came in his father''s possession. The defendant no.1 has claimed that his father acquired 0.26 acres of land in plot nos.443 and 444 under Khata No.298 from the recorded tenant namely, Gobardhan Pathak by virtue of a registered sale-deed dated 22.10.1940. He has further claimed that his father was in peaceful possession of the suit land and his name was mutated by virtue of order passed in Mutation Case No.90A of 1962-63 and he has been paying rent to the State. 4. In the pending suit, an application for injunction was filed by the petitioner in which by an order dated 05.12.2017 the parties have been directed to maintain the status-quo in respect of the suit land. The petitioner has also filed an application dated 17.01.2018 for appointment of ''Advocate Commissioner'' and the plaintiff filed an application for amendment in the plaint dated 31.01.2018. The petitioner has also filed an application dated 17.01.2018 for appointment of ''Advocate Commissioner'' and the plaintiff filed an application for amendment in the plaint dated 31.01.2018. By the impugned order dated 02.08.2018, the petitioner''s application for appointment of ''Advocate Commissioner'' has been rejected on the ground that there is no allegation of changing the character and physical feature of the suit land. 5. The learned counsel for the petitioner submits that in view of the stand taken by the petitioner in the written statement that the suit land is not vacant land rather houses have been constructed over the suit land by the father of the petitioner about 70 years back and a commercial complex known as ''Narayani Complex'' is standing over the suit land, to give full affect to the order of status-quo a report from the ''Advocate Commissioner'' is required. 6. Order XXVI Rule 9 CPC provides that to elucidate any matter in dispute if the court deems a local investigation necessary it may issue a commission to such person to make such investigation and to report thereon to the court. In his application dated 17.01.2018, the petitioner has asserted that the building structure and the approach galiyaras, pathways are under the threat of demolition and the plaintiff is contemplating to raze the old houses to the ground to bring the physical feature of the suit land as described by him in the plaint. Apparently, on such apprehension the petitioner could have moved an application under Order XXXIX Rule 1 & 2 CPC, but then such an application filed by the petitioner has already been allowed and the parties have been directed to maintain status-quo in respect of the suit land. Apprehension of the petitioner as disclosed in paragraph nos.4 and 5 of his application dated 17.01.2018, in view of the order of statusquo dated 05.12.2017, thus, is not a ground for appointment of ''Advocate Commissioner'' in an application under Order XXVI Rule 9 CPC. In the suit, issues have yet not been settled and the petitioner can lead oral as well as documentary evidence which may include photographs, videographs etc. of the suit land and, therefore, the petitioner, as rightly observed by the trial judge, cannot be permitted to collect evidence through the process of the court. 7. In the above facts, finding no infirmity in the impugned order dated 02.08.2018 the writ petition is dismissed.