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2025 DIGILAW 400 (ALL)

Dhanawati Devi v. Bator

2025-02-28

ROHIT RANJAN AGARWAL

body2025
JUDGMENT : Rohit Ranjan Agarwal, J. 1. Sri R.C. Singh, Senior Advocate, for the petitioner and Sri Pawan Kumar Dubey, Advocate, holding brief of Sri Kashi Nath Singh Yadav, learned counsel for respondent No.1 are present. 2. Through this writ petition a challenge has been laid to the order dated 04.5.2024 passed by Civil Judge (Senior Division)/F.T.C., Ghazipur in Original Suit No.172 of 2014 rejecting the application moved by the plaintiffs-petitioners for appointment of Survey Commission as well as the order dated 07.12.2024 passed by District Judge, Ghazipur in Civil Revision No.35 of 2024 rejecting the revision of the petitioner. 3. The facts giving rise to the present petition are that the plaintiffs-petitioners had instituted a suit for permanent prohibitory injunction against defendants-respondents. An application under Order XXVI, Rule 9 C.P.C. was moved for appointment of survey commission, which was rejected by the trial Court and the order has been affirmed by the revisional Court. Hence, the present revision. 4. Sri R.C.Singh, learned counsel for the petitioners submitted that the Court below had wrongly assumed that the land in question was not identifiable and it is a minjumla number and without passing an order for survey commission had rejected the application. According to him, the application could not have been rejected and if the land was not identifiable, it was the survey commission who could have easily reported the matter and not the Court. 5. Sri Dubey, learned counsel for the defendants-respondents fairly concedes to the fact that the application moved under Order XXVI, Rule 9 C.P.C. could not have been rejected by the trial Court. 6. I have heard learned counsel for the parties and perused the material on record. 7. Before proceeding to decide the issue in hand, a cursory glance of Order XXVI, Rule 9 C.P.C. is necessary for the better appreciation of the case which is as under : "9. 6. I have heard learned counsel for the parties and perused the material on record. 7. Before proceeding to decide the issue in hand, a cursory glance of Order XXVI, Rule 9 C.P.C. is necessary for the better appreciation of the case which is as under : "9. Commissioners to make local investigation.- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules." 8. From reading of Rule 9 of Order XXVI C.PC., it is clear that in a suit, the Court being satisfied that local investigation is required for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission as it thinks fit directing him to make such investigation and to report to the Court. 9. Though the power is not absolute in terms of Rule 9 of Order XXVI, but the Court has to take into consideration before passing of the order for local investigation by commission that for settling the dispute, the report of the commission is required. 10. In the instant case, the dispute is in regard to Plot No.685, whose old numbers were 619, 620 and 621. The said numbers could not be located and as such the commission was sought by the plaintiffs-petitioner. As the plot No.685 is a minjumla number, the dispute could have been sorted out if the survey commission is appointed by the trial Court and the report was sought after the survey was done by the commission. The said numbers could not be located and as such the commission was sought by the plaintiffs-petitioner. As the plot No.685 is a minjumla number, the dispute could have been sorted out if the survey commission is appointed by the trial Court and the report was sought after the survey was done by the commission. The finding substituted by the trial Court prior to issuance of survey commission or its report is against the provisions of Rule 9 of Order XXVI C.P.C. The Court has only to see that for the purpose of elucidating any matter in dispute, if the commission is required, the Court will proceed to order for such commission. The Court cannot itself sit as a survey commission and pass order. 11. In the instant case, the Court itself has acted as if it was a survey commission and had decided the dispute. The findings recorded by trial Court would affect proceedings of the suit. 12. In view of the said fact, the orders impugned dated 04.05.2024 passed by Civil Judge (Senior Division/ Fast Track Court, Ghazipur in Original Suit No.172 of 2014 and 07.12.2024 passed by District Judge, Ghazipur in Civil Revision No.35 of 2024 are hereby set aside. The matter is remitted back to the trial Court for consideration of the application filed under Order XXVI, Rule 9 C.P.C. afresh. The Court below shall proceed to decide the application strictly in accordance with law within a period of one week from the date of presentation of a certified copy of this order. 13. The writ petition stands allowed.