Gauhati High Court
Nur Sayed Ali vs Suraj Jamal & 2 Ors on 21 April, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
CRP 130 of 2017
NUR SAYED ALI .....Petitioner
Vs
1. SURAJ JAMAL
2. MD. NOOR ALI
3. MUSTT. SAMIRAN NESSA ....Respondents
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
Advocates for the Petitioners : Mr. D.A. Kaiyum, Mr. S.H. Rahman,
: Mr. E. Hussain.
Advocates for the Respondent : None.
Date of hearing and Order : 21.04.2017
JUDGMENT AND ORDER (ORAL)
1. Heard Mr. D.A. Kaiyum, learned counsel for the petitioner.
2. By filing this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 07.02.2017 passed by the learned Munsiff No. 1, Darrang, Mangaldai in T.S. No. 25/2009, by which the prayer made by the petitioner for issuance of commission to make local investigation of the suit land was rejected. The petitioner herein is the defendant No. 1 in the suit and the respondent No. 1 and 2 herein are the plaintiffs in the said suit.
3. It is projected that as per the plaint filed by the plaintiffs, it asserted therein that the plaintiffs had possession over 2 Bighas 1 Katha land, which is described in Schedule-B of the plaint. However, the petitioner herein, who was arrayed as CRP 130/2017 Page 1 of 3 defendant No. 1 in the said suit had denied the said fact and claiming that the father of one Late Samed Ali till his life time had sold the suit land from his share to Late Bishu Sheikh in the year 1965 and thereafter in the year 1968 the deceased father of the petitioner herein had purchased 1 Bigha 2 Katha 10 Leches land from the said Late Bishu Sheikh. It is further stated that the deceased father of the plaintiff had further sold 4 Kathas 10 Leches of land out of his share to Late Habez Ali and he had further gifted 1 Bigha 1 Katha land from his share to his brother Late Habez Ali. It is projected that out of these plots of land, the land described in Schedule-B of the plaint is one portion of these four plots of land and it was claimed that the plaintiffs were never in possession of the land described in Schedule-B of the plaint.
4. The learned counsel for the petitioner submits that in view of the disputed facts, he had filed an application under Order XXVI Rule 9 read with Section 151 CPC for passing necessary orders of appointing a Commission to make local investigation of the suit land. The said petition was numbered as Misc(J) Petition No. 1356/2015 and the learned Munsiff No. 1, Darrang, Mangaldai by order dated 07.02.2016 passed in T.S. No. 25/2009 had dismissed the said petition. The short order passed by the said learned Court is extracted herein below:
"Both parties duly represented. Having already heard both parties at length on the prayer of defendant No. 1vide Misc(J) Petition No. 1356/2015 under Order XXVI Rule 9 read with Section 151 CPC for passing necessary orders of commission to make local investigation of the suit land, I have meticulously perused the entire case record and duly deliberated upon the matter at hand.
Situated thus, at this stage of the suit, which is already p[ending for further cross examination of DWs, a pertinent question has arisen for pendering as to whether a local investigation is ought to be made or a commission is ought to be appointed, as prayed for by the petitioner/defendant no. 1, to ascertain "whether the plaintiffs retained possession over 2 Bigha 1 Katha of land as shown in Schedule-B in the share of their deceased father or not."
Now, a bare perusal of the case record reveals that the already 5(five) DWs had been cross-examined and discharged. Title Suit itself is an old pending one of the year 2009 and is now at its almost fag end. In my CRP 130/2017 Page 2 of 3 considered opinion, I find it fit to hold that the petition concerned had been filed before the Court in a much belated manner, and the defendant no. 1 had availed more than his fair share of opportunity to adduce his best evidence. Hence, in measured view of the above discussion , prayer of defendant no. 1 stands rejected. However, considering the facts at hand, no cost have been imposed upon the petitioner. Misc(J) Petition No. 1356/2015 disposed of accordingly.
The defendant is hereby strictly directed to produce his further remaining witnesses , if any, on the next fixed date positively without fail. In default of which, the DWs shall be closed down.
Fixing 22.03.2017 for evidence of DWs, if any/necessary order."
5. On perusal of the materials available on record, this Court is of the opinion that as the defendants in the suit had examined 5(five) witnesses who had been cross-examined and discharged, it is expected that the parties will prove their own case. In the opinion of this Court, the provisions of Order XXVI Rule 9 is to be used or invoked by the learned Court only in which the court deems fit that a local investigation to be requisite or appropriate for the purpose of elucidating any matter in dispute. This provision cannot be used by any party to fish out an evidence for their case or for filling up of lacuna in their own evidence.
6. Therefore, this Court finds no infirmity or jurisdictional error in the impugned order dated 07.02.2017 passed by the learned Munsiff No. 1, Darrang, Mangaldai in T.S. No. 25/2009.
7. Accordingly, this revision is not entertained and the same is dismissed. There shall be no order as to cost.
JUDGE Mkumar CRP 130/2017 Page 3 of 3