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2018 DIGILAW 86 (GAU)

DIGANTA SAIKIA v. JYOTSNA RANI PODDAR

2018-01-18

A.K.GOSWAMI

body2018
JUDGMENT/ORDER : Arup Kumar Goswami, J. Heard Mr. S.K. Goswami, learned counsel for the petitioner. Also heard Mr. S. Biswas, learned counsel, appearing for the respondent. 2. By this application under Article 227 of the Constitution of India, the petitioner calls into question the order dated 05.09.2016 passed by the learned Munsiff No.1, Margherita in Misc. (J) Case No.6/2016 arising out of Title Execution Case No.2/2015. 3. The respondent had filed a title suit being Title Suit No.7/2014 in the Court of the learned Munsiff at Margherita for recovery of khas possession of the suit premises after evicting the defendant therein, namely, one Bhola Kumar, on the ground of he being a defaulter. The suit was decreed by judgment & order dated 25.08.2015. Thereafter, the plaintiff started execution proceeding and Title Execution Case No.2/2015 was registered. The petitioner filed a petition under Order 21 Rules 99 & 100 read with Section 151 CPC contending that in the execution proceeding, the petitioner was dispossessed from part of Dag No.1390 of Periodic Patta No.78 of Digboi Town and accordingly, prayed for restoration of possession of the land and house described in the Schedule to the said petition. The petitioner, subsequently, filed a petition under Order 26 Rule 10 (A) CPC for issuing a Commission to the Circle Officer, Margherita Revenue Circle for physical measurement and demarcation of the suit land as well as the land described in the Schedule of the petition of the petitioner under Order 21 Rules 99 & 100 read with Section 151 CPC. 4. Rejection of the petition vide order dated 05.09.2016 has given rise to this application under Article 227 of the Constitution of India. 5. The learned trial Court not only took note of provision under Order 26 Rule 10 (A) CPC but had also taken note of Order 26 Rule 9 CPC. 6. The learned trial Court held as follows :- "In the instant case, the matter in issue is whether the decree holder/Opp. Party has been handed over possession of the petitioners land instead of the suit property, in the garb of executing the decree. These facts are seen to be matters which are to be proved otherwise than on a report of the Commissioner and the Court is required to decide the matter on the basis of the evidence to be adduced by both the parties. These facts are seen to be matters which are to be proved otherwise than on a report of the Commissioner and the Court is required to decide the matter on the basis of the evidence to be adduced by both the parties. Further, the primary issue is a question of fact and when any disputed question of fact can be conveniently decided by way of evidence lead by the parties, the question of appointment of Commissioner does not arise at all. Also, it is the burden of the petitioner to prove their own case and show that it is his land which has been handed over to the Opp. Party/decree holder in the name of executing the decree. Further, there should be sufficient basis and justification as also an effective need and it needs mention that an appointment of Commissioner cannot be sought for or obtained as a matter of course. Also, it is for the parties to lead evidence and thereafter, if the Court thinks that it is unable to arrive at a decision owning to the peculiar nature of the matter in dispute, then it may appoint a Commissioner for the convenience of the Court to arrive at a just decision. A question of fact which can conveniently be decided by the parties by leading evidence, cannot be referred to Commissioner." 7. It is an admitted position that till date no evidence was led by the petitioner. 8. I see no good ground to take a view different than the one taken by the learned Munsiff, Margherita, Assam. 9. Resultantly, this application is dismissed. No cost.