Shamima Khatoon and Others vs Rajesh Kumar Sahu and Others

D.N. Patel, J.—The present petition has been preferred mainly being aggrieved by an order passed by the Sub-Judge I, Giridih, dated 10th September, 2008 in Partition Suit No. 8 of 1976, which is at Annexure 4 to the memo of present petition.

Learned Counsel for the petitioners (original plaintiffs), who have instituted Partition Suit No. 8 of 1976, has vehemently contended that a Pleader Commissioner was appointed under Order XXVI Rule 9 of the Code of Civil Procedure, upon an application preferred by the purchasers-defendants and in the measurement by the Pleader Commissioner, there was some description about northern boundary, which was incorrectly mentioned in the suit property by the original plaintiffs and, therefore, there was a need of rectification of northern boundary in the original plaint and, therefore, an application for amendment of the plaint was preferred, but, the same was dismissed by the trial court and, therefore, a writ petition bearing W.P.(C) No. 1869 of 2007 was preferred before this Court and this Court vide order dated 10th July, 2007 dismissed the claim of the present petitioners and it was observed by this Court that at an execution stage, no amendment in the plaint is allowed. Nonetheless, the Pleader Commissioner will act as per the evidence on record, at the time of drawing final decree in the Partition Suit.

It is also submitted by the learned Counsel for the petitioners (original plaintiffs) that the Pleader Commissioner has given a report, which is annexed as Annexure 6 along with I.A. No. 33 of 2009 and as per the detailed map, given at internal page No. 10 of the said report, the plot, in dispute, is narrated by boundary ABCD and this plot is to be measured. As per the learned Counsel for the petitioners, this is not only Plot No. 337, but, it includes Plot No. 123 also, whereas the contesting respondents submitted that the said boundary ABCD is a boundary of Plot No. 337 and the land, in question, and no error has been committed by the Pleader Commissioner in the trial court. Learned Counsel for the petitioners has relied upon several documentary evidences.

Be that as it may, the order passed by the trial court dated 10th September, 2009 in Partition Suit No. 8 of 1976, at Annexure 4 to the memo of petition, states that the Pleader Commissioner must be allowed to measure the said plot, which is now drawn as ABCD in the Pleader Commissioner''s report, keeping all the contentions of the parties to the suit open and if anybody is interfering with the measurement, those hindrances and barriers ought to be removed. If the doors are closed by anybody, then the doors are bound to be broken open, but, the learned Counsel for the petitioners very fairly submitted that there is no need of breaking any door or window and they are always inviting the Pleader Commissioner for measurement of the boundary ABCD, and all the contentions and rights of the parties in Partition Suit No. 8 of 1976 must be kept intact, as they are. The measurement is not a problem at all for the original plaintiffs, but, the learned Counsel for the original plaintiffs vehemently submitted that they have objection if the measurement is treated as an admission of any fact on the part of the plaintiffs.

Learned Counsel for the purchasers-defendants submitted that at present no final decision has been taken by the trial court in Partition Suit No. 8 of 1976 and final decree is yet to be prepared. Only the measurement process is going on and, as stated at Annexure-6, which is demarcated at ABCD is to be measured by measuring boundary ABCD. No contention of the original plaintiffs and no contention of the original purchasers-defendants is deemed to have been waived or settled. All the contentions and rights of the parties have been kept intact, as they are, and left open for a decision by the trial court, but, the measurement process ought to be completed and the original plaintiffs cannot interfere with the measurement proceedings of the plot, demarcated at ABCD at Annexure 6, which is stated in I.A. No. 33 of 2009.

In view of the aforesaid limited submissions and looking to the impugned order, passed by the Sub-Judge I, Giridih, dated 10th September, 2008 in Partition Suit No. 8 of 1976, it appears that the trial court wants a measurement to be done of a plot, demarcated as ABCD, as stated at Annexure 6 to I.A. No. 33 of 2009. If the plaintiffs are interfering with the measurement process or method, then it has been stated in the impugned order that the Pleader Commissioner can break open the door and measure the boundary, demarcated as ABCD, but, it is fairly submitted by the learned Counsel for the original plaintiffs that there is no question of breaking of any door or window, as they are ready to co-operate the court-commissioner. So long as the contention of the original plaintiffs are concerned, all their contentions are kept open, about Plot No. 337 and pertaining to the entries in the revenue records and such other arguments, which are going to be canvassed by the original plaintiffs before the trial court are left as they are for adjudication by the trial court. The original plaintiffs are ready for measurement, as per the order, passed by the trial court dated 10th September, 2008, at Annexure 4 to the memo of petition and, therefore, as the willingness is already shown in the process of delivery of justice, I see no reason to entertain this writ petition. What is ought to be kept in mind by the Pleader Commissioner is that whenever they are going for measurement, they shall, in advance, intimate the original plaintiffs, so that all the doors and windows may be kept open for measurement. The Pleader Commissioner shall carry out the measurement process as early as possible and practicable, without any loss of time.

In view of the aforesaid submission, the writ petition as also I.A. No. 33 of 2009 are hereby disposed of. Full cooperation shall be given by the original plaintiffs, so far as measurement process is concerned and if there is a cooperation for measurement of a plot, demarcated as ABCD, as stated at internal page No. 10 of the Pleader Commissioner''s report (Annexure 6 to I.A. No. 33 of 2009), there is no need of any police force to be taken by the Pleader Commissioner along with him, while doing measurement.