Ragini Devi vs Sanjay Mishra

Sanjay Kumar Dwivedi, J

Heard  learned  counsel appearing  for  the  petitioner and learned counsel appearing for the opposite party Nos.1 and 3.

Notice upon the opposite party No.2 has already been effected and the matter was adjourned with a view to provide one more opportunity to opposite party No.2 on 29.04.2025 in spite of that he has not appeared, as such this petition is being heard in absence of opposite party No.2.

This petition has been filed under Article 227 of the Constitution of India for setting aside of the order dated 07.12.2023 passed by learned Sub-Judge – XI, Deoghar arising out of Original Suit No.251 of 2021 whereby the Misc. Civil Application No.477 of 2022 dated 14.12.2022 filed by the petitioner/plaintiff under Order XXVI Rule 9 of CPC has been rejected by the learned Court.

Mr. Ankit Kumar, learned counsel appearing for the petitioner/plaintiff submits that the said suit has been instituted by the petitioner seeking for declaration that the suit passage i.e. Schedule – 1 is the easement of necessity of passage of the plaintiff and for the mandatory injunction by removing the illegal construction made by the defendants over the said passage. He submits that the said suit has been admitted and on notice the defendants/opposite parties have appeared before the learned Court and filed their written statement. He submits that by way of four sale deeds the petitioner herein has purchased the land in question and the easement right is disclosed in the sale deed, however, encroachment is being made and the easement right is not being provided to the petitioner and in view of that the petitioner has been compelled to file the suit and in this background the petition under Order XXVI Rule 9 of CPC was filed before the learned Court which has been rejected by the impugned order. He submits that the parameters of the said provision have not been considered by the learned trial court in its right perspective and only to find out the encroachment is there or not and on the new development the said petition was filed. However, it has been rejected on the erroneous ground. On this background, he submits that the said order may kindly be set aside.

On  the  other  hand,  Mr.  Rishav  Kumar,  learned  counsel appearing for the opposite party Nos.1 and 3 submits that the learned Court has rightly passed the said order. He submits that Order XXVI Rule 9 of CPC cannot be used for collecting the evidence and the alleged new development as disclosed in the plaint is of the month of July, 2021 wherein the suit itself was presented in November, 2021. He submits that thereafter no cause of action is shown to suggest that any encroachment was done or being made by the defendants. He submits in view of that the learned Court has rightly passed the order.

Admittedly, the suit is filed by the plaintiff for easement right in which the defendants have appeared and filed their written statement and thereafter a petition under Order XXVI Rule 9 of CPC has been filed by the plaintiff/petitioner for making an enquiry with regard to the encroachment. The learned Court has found that the said deeds or iota was stating since 1936-37 and it has not been shown before the learned Court that thereafter any encroachment have been made by the defendants.

It is well settled that the object of local investigation by appointing commissioner is not to collect evidence which can be adduced in the court. It is the court who has to decide the matter on the basis of the evidence to be adduced by the parties or the evidences already on record. A reference may be made to the case of Praga Tools Corpn Ltd. v. Mahboobunnissa Begum reported in (2001) 6 SCC 238, wherein at paragraph No.12 it has been held as under :-

“12. The State of Andhra Pradesh has filed objections to the findings of the trial court. On behalf of the appellants and the State of Andhra Pradesh it was submitted that the trial court could not have discarded the findings of the Court Commissioner. It was submitted that as per the orders of this Court, it was only this Court which could hear objections on the report of the Commissioner. We see no substance in this submission. This Court had directed the trial court to record findings. The trial court may have appointed a Commissioner to carry out survey but ultimately the findings had to be recorded by the trial court. The report of the Commissioner could only be an aid to the trial court in arriving at its findings. The trial court has allowed parties to lead oral as well as documentary evidence. The trial court has complied with the directions of this Court.”

Normally, writ is to be issued to a commissioner for local investigation to appreciate the evidence already recorded. The commissioner can be appointed where it is to be found as to which plot the disputed land lies. A writ can be issued to any person to relay the same on the bench even through no evidence is required if the Court finds that the parties themselves cannot produce the evidence to that effect. In the case in hand on the basis of the sale deed the suit was instituted meaning thereby both the parties are knowing the area of the suit property.

In light of the above discussion and coming to the finding of the learned trial court, the Court finds that there is no illegality in the impugned order, as such this petition is dismissed.

Dismissal of this petition will not prejudice the right of either of the parties to make out their case by way of leading evidence before the learned trial court where the matter is pending.