Jharkhand High Court
Kalipada Mahato vs Babi Mahatain And Anr on 29 July, 2016
Equivalent citations: 2017 AJR 10, (2017) 2 CIVLJ 217, (2016) 4 JLJR 281, (2017) 1 JCR 224 (JHA), (2017) 172 ALLINDCAS 368 (JHA)
Author: R.N. Verma
Bench: Ravi Nath Verma
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P.(C) No. 4650 of 2015 . .
Kalipada Mahato Petitioner
versus
1. Babi Mahatain
2. Badri Pramanik @ Baandiram Paramanik . Respondents.
-----
CORAM : THE HON'BLE MR. JUSTICE RAVI NATH VERMA
-----
For the Appellants : Mr. A.K.Sahani
For the Respondent: Mr. Jitendra Tripathi
-----
Reserved on 21.07.2016 Delivered on: 29 /07/2016
R.N.Verma,J. The plaintiff has preferred this writ application under
Article 227 of the Constitution of India for quashing of the order
dated 13.04.2015 passed by the learned Civil Judge ( Junior
Division), Bokaro in Title Suit No. 47 of 2007, whereby the
petition filed by the plaintiff for appointment of Pleader
Commissioner under Order 26 Rule 9, read with Section 151 of
the Code of Civil Procedure ( in short the 'Code') has been
rejected.
2. At the instance of the plaintiff/petitioner, a suit was
filed for a decree of specific performance of contract and for
confirmation of possession over the suit land and further for a
direction to the defendants to execute registered sale deed in
respect of the property as mentioned in the schedule at the foot
of the plaint after taking balance consideration amount.
3. The pleading of the plaintiff is that the property, in
question, bearing C.S. Plot no. 827 and 828 measuring 23
decimals, situated in Mouza Kaliadag within P.S. Chandankiary
belongs to the defendant no.1, who had acquired the suit property
by virtue of registered sale deed dated 18.12.1987 and
28.06.2002. The said defendant no.1 offered to sale the above land to the father of the plaintiff on total consideration amount of Rs. 52,000/- which was accepted by the father of the plaintiff. Defendant no.1 took advance of Rs. 30,000/- from the plaintiff and agreed to execute sale deed after receiving the balance consideration amount of Rs. 22,000/-. Accordingly, unregistered deed of agreement incorporating the terms and condition to sell was executed. After taking advance money , possession was also delivered to the plaintiff and since then plaintiff has been coming in possession.
-2- WPC No. 4650/20154. In May, 2007, defendant no.2 disclosed the fact in the village that he has purchased the suit property from defendant no.1 and after inquiry plaintiff came to know that defendant no.1 has executed sale deed in favour of defendant no.2 on 11.08.2005 in respect of the suit property. But inspite of execution of sale deed in favour of defendant no.2, plaintiff has been continuing in possession of the suit land. Since the sale deed was executed in breach of agreement , the present suit was filed with the relief as indicated above.
5. After appearance, the defendant no.1 the present respondent no.1 filed the written statement completely denying the execution of any unregistered deed of agreement in favour of the plaintiff and handing over of the possession of suit property pursuant to the agreement.
It is not necessary to discuss the entire pleading of the defendant-respondent no.1.
6. It appears from the record that after closure of witnesses of both the parties, the case was fixed for final argument. After completion of the defendant's argument, the suit was posted for argument on behalf of the plaintiff. During the course of argument, plaintiff field a petition under Order 26 Rule 9 read with section 151 of the Code. The court below after hearing both the parties passed the order impugned rejected the prayer for appointment of Pleader Commissioner holding that allowing the petition would amount to collecting evidence on behalf of the plaintiff at this belated stage. Hence,this writ application.
7. Mr. A.K.Sahani, learned counsel appearing for the petitioner assailing the order impugned, as bad in law, seriously contended that from bare perusal of Order-26 Rule-9 of the Code it would appear that Pleader Commissioner can be appointed at any stage of the suit, but the court below without considering the provisions of law erred in rejecting the said petition merely on the ground that at this belated stage such petition cannot be allowed. It was also submitted that the court below also erred in not considering the issue no. 9 which relates to the dispute concerning the possession or ascertaining the status of the land, as such local investigation was essential for proper adjudication of the dispute between the parties. In support of his contention, learned counsel relied upon the judgment in " Kamal Kishore -3- WPC No. 4650/2015 Pradhan Vs Netro Pradhan & others" : 2011 (4) JCR-316 and in "Gobind Sahu Vs Baijnath Sahu and Ors" : 2011(2) JLJR-38.
8. I have gone through the order impugned, as well as the petition filed by the plaintiff under Order 26 Rule 9 of the Code, the rejoinder field at the instance of the defendant-respondent no.1 and the above judgments cited by the counsel. The relevant issue no. VIII and IX framed by the court below are as follows :
"Issue no.VIII- Whether defendant no.1 has received an advance of Rs.30,000/- ( Thirty thousand) from the plaintiff and executed an unregistered deed of agreement dated 26.12.2014 to sell the suit property ?
"Issue no. IX- Whether the defendant '1' handed over the possession of the suit land to plaintiff ?
9. It is well settled that the object of local investigation by appointing Pleader Commissioner is not to collect evidence which can be adduced in the court. A Commissioner will not be in a position to determine the question as to who is in possession of the property. It is the court, who has to decide the matter on the basis of evidence to be adduced by the parties or the evidences already on record.
10. Apparently, in the instant case, both the parties have adduced their evidences and after closure of the same, defendant has completed his argument. It was the plaintiffs' turn to argue the case when the aforesaid petition for appointment of Pleader Commissioner was filed. Obviously, it is filed only to fill up the lacunae in the evidence and to fish out the evidence which cannot be allowed. Hence, there is no need to appoint the Pleader Commissioner to demystify or to elucidate the matter in dispute. The court below has considered the evidences available on record and found it sufficient to deal with the two issues, rightly rejected the prayer of the petitioner. Mr. Sahani,learned counsel for the petitioner has not pointed out any plausible ground or cogent reason to interfere with the order impugned.
11. Accordingly, this writ application, being devoid of any merit, is hereby dismissed.
( R.N. Verma ,J.) Raman/