Jharkhand High Court
Shankar Kumar Sarkar vs Srimati Umesh Bala Devi on 28 January, 2016
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 4246 of 2008
Shankar Kumar Sarkar, S/o Late Janendra Chandra Sarkar, R/o
Qr. No. 173, Swarnrekha Flat, P.O+P.SSakchi, Jamshedpur, East
Singhbhum ... ... ... ... Petitioner
Versus
Smt. Umesh Bala Devi, W/o Jayendra Singh, R/o Holding No.73,
Road No.3, Baikuntha Nagar, P.O+P.SMango, Jamshedpur, East
Singhbhum ... ... ... ... Respondent
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Petitioner: Mr. Rahul Gupta
For the Respondent: Mr. Y.N.Mishra
04/28.01.2016Aggrieved by order dated 14.07.2008 in Title Suit No. 66/01 whereby, application for appointment of a Pleader Commissioner has been rejected, the present writ petition has been filed.
2. Title Suit No. 66/01 was instituted for a declaration of right, title and interest of the plaintiff over Schedule 'A' and Schedule 'B' properties and for confirmation of possession of the plaintiff over the entire suit properties. The petitioner is the defendant in the title suit. The petitioner contested the suit disputing that he, with a dishonest intention, was trying to disturb the lawful possession of the plaintiff over Schedule 'A and Schedule 'B' properties. It was asserted that the plaintiff is trying to grab the property belonging to the defendant. In the pending suit, an application was filed under Order XXVI Rule 9 CPC for appointment of a Pleader Commissioner. The said application has been dismissed vide impugned order dated 14.07.2008.
3. The learned counsel for the petitioner submits that appointment of a Pleader Commissioner was necessitated in the wake of the illegal encroachment by the plaintiff over Schedule 'A' property and therefore, in terms of Order XXVI Rule 2 CPC, the Court should have, in order to elucidate the matter, ordered appointment of a Pleader Commissioner.
24. A perusal of application under Order XXVI Rule 9 CPC discloses that the petitioner/defendant raised a plea that during pendency of the suit, the plaintiff illegally constructed a tinshed over southern side of Schedule 'A' property. On such allegation, the plaintiff filed application for appointment of a Pleader Commissioner for measurement of the suit land. It appears that in the title suit the defendant filed written statement and counter claim however, the defendant has not filed an application seeking injunction. It is also not in dispute that the petitioner has, in his counterclaim, sought amendment for a decree for recovery of possession in respect of Schedule 'A' property. Both the parties have staked title over the suit properties. In the above situation, the parties are required to lead evidence and in the garb of an application under Order XXVI Rule 9 CPC, the defendant cannot seek appointment of a Pleader Commissioner for creating evidence. It further appears that the said application was filed when the suit was posted for hearing.
5. Considering the aforesaid facts, I find no infirmity in impugned order dated 14.07.2008 and, accordingly, the writ petition is dismissed.
Satish (Shree Chandrashekhar, J)