Object Of Appointment Of Commissioner Is Not To Collect Evidence: Jharkhand HC

By way of the instant Petition, the Petitioner challenged the order of the Civil Judge (Sr. Division)-III, Deoghar arising out of the Original Suit whereby the application under Order XXVI Rule 9 of CPC filed on behalf of the plaintiff was allowed.

The Single-Judge Bench of Justice Subhash Chand said, “There is no finding of the learned trial court how the survey commissioner report was necessary for the correct and just appreciation of respective claims of both the parties.”

Advocate Prashant Pallav represented the Petitioner while Advocate Arvind Kr. Choudhary represented the Opposite Party.

The petitioner submitted that the Original Suit was filed on behalf of Baidyanath Pd. Yadav & Ors. against Krishna Mistry & Ors. with the prayer to declare the right, title, interest of the plaintiff over the land in suit and also for recovery of the possession after evicting therefrom the defendants who were the illegal and unauthorized occupants. Further, the relief for permanent injunction was also sought restraining the defendants from claiming any inch of the land of the property in suit.

In the plaint itself, the plaintiff pleaded that the defendants also advanced the fraudulent order of exchange in which the plaintiff pleaded himself that the plot in question was a part of the non-transferable lands recorded in the name of Mani Mahto, Gayani Mahto and Ramcharan Mahto during the last Gantzer's Survey settlement. Simultaneously the plaintiff had also pleaded that the defendants who are claiming their possession and right, title in the property in question on the basis of the exchange that is also itself illegal

It was brought to the Court’s notice that the evidence of plaintiff had been concluded and the evidence of defendant had commenced. At that stage, an application was moved on behalf of plaintiff under Order XXVI Rule 9 of CPC for appointing the survey pleader commissioner for the inspection and to report with carving of map according to the present state of plot. The Trial Court passed the impugned order which allowed the pleader commissioner’s report. It was submitted that the was itself based on perverse finding. No reason was recorded why the survey commissioner was required for inspection of the property in question.

On a perusal of the application filed by the plaintiff under Order XXVI Rule 9 of CPC, the Bench noted that the plaintiff had averred that the plaintiff and their family members have been purely cultivators, labourers and completely unaware of the implicacy of the law and after having played fraud and misrepresentation defendant have obtained the ab-initio, illegal and fraudulent order of exchange from the court of SDO, Deoghar.

“Both under the law and fact any judgment or order obtained by playing fraud or misrepresentation is illegal and void. In the interest of justice and equity both above mentioned plots were sought to be recorded as parti land during last gantzer's survey settlement from the correct and just appreciation of the claims of both the parties the survey commissioner was sought to be appointed”, the Bench said.

From the very perusal of the plaint and the very perusal of the written statement filed on behalf of defendant, the Bench noted that there was no dispute between the parties in regard to the identity of the property in question or in regard to the location of the property in question since the plaintiff himself admitted in the plaint that the property in question which was in unauthorized and illegal occupation of defendant as they had obtained in regard to the property in suit the exchange order from the concerned court by playing fraud.

It was further noticed that the plaintiff had sought the relief for declaration of right, title and interest in the property in question and also recovery of possession from the defendant after evicting them from the possession thereof and relief for permanent injunction was also sought.

“Taking into consideration the pleadings of the plaintiff there is no requirement of appointing any survey pleader commissioner. The plaintiff in the application which is annexure no.3 has not shown any ground on which he wants to call for the report of survey pleader commissioner. Rather it has been stated that for the correct and just appreciation of respective claim the survey commissioner is sought to be appointed”, the Bench said while also adding, “For the same legally no permission can be granted to appoint the survey commissioner. The court cannot permit the parties to collect the evidence.”

Reliance was also placed upon the judgment in Saraswathy Vrs. Viswanathan (2002) (2) CTC 199, it has been held that the object of the appointment of Commissioner is not to collect the evidence but to elucidate the matter which are local in character and which can be done only by local investigation at spot.

“The finding recorded by the learned trial court is perverse, reason being in the application itself for appointment of pleader commissioner no where the applicant has mentioned for what purpose he wants to call for the report of survey commissioner. There is no finding of the learned trial court how the survey commissioner report was necessary for the correct and just appreciation of respective claims of both the parties”, it said.

As per the Bench, the grounds which were taken in the very application filed on behalf of the plaintiffs did not come under the purview of Order XXVI Rule 9 of CPC. There being no dispute between the parties in regard to the identity and also the location of the suit property, the impugned order by which the trial court allowed the application needed interference.

Thus, allowing the petition, the Bench set aside the impugned order.

Cause Title: Krishna Mistry @ Krishna Vishwakarma v. Baidyanath Prasad Yadav (Case No.:C.M.P. No.271 of 2023)

Appearance:

Petitioner: Advocates Prashant Pallav, Shivani Jaluka

Opposite Party: Advocate Arvind Kr. Choudhary,

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