Writ petition maintaining under Article 226 against rejection of application for commission report on suit property position. Court disposed of petition observing commission may be issued at appropriate stage if identification of properties remains difficult post-evidence.
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Court No. - 36
Case :- WRIT - C No. - 56008 of 2013
Petitioner :- Daya Ram Respondent :- Smt. Gudiya Mishra Counsel for Petitioner :- D.K. Mishra Counsel for Respondent :- S.C.,S.K. Nigam
Hon'ble Mrs. Sunita Agarwal,J.
On the prayer made by learned counsel for the petitioner, the present petition is maintained under Article 227 of the Constitution of India.
The present petition is directed against the order of rejection of application paper no.48-Ga moved by the defendant/petitioner to seek commission report with regard to the position of the suit property.
Submission of learned counsel for the petitioner is that the plaintiff and defendant are owners of plot no.860 and 859, which are lying adjacent to each other.
Admittedly, they are claiming their right over the suit property on the basis of separate sale deeds executed in their favour. It is admitted to learned counsel for the petitioner that the description to the said plots have been given in the sale deeds executed in favour of the plaintiff and defendant. The evidences have not been led by the parties, as yet and only issues have been framed in the suit.
In view thereof, this Court is of the considered view that the question as to the position of the plots in dispute namely plot no.860 and 859 being in possession of the plaintiff and defendant, can very well be determined after perusal of the sale deeds, separately executed in their favour, after evidence are led by the parties.
However, in case of any doubt, after a perusal of the evidence led adduced by the parties, it is always open for the court below to issue a commission so as to find out the exact position of the disputed plots.
With the above, the present petition is being disposed of with the observation that in case, the Court below finds it difficult to identify the disputed properties i.e. 860 and 859, it may issue a commission so as to find out the exact position, at an appropriate stage.
Order Date :- 11.12.2018 Himanshu
2 issues framed by the court
Whether to maintain a writ petition challenging the rejection of an application to issue a commission report regarding the position of disputed suit properties.
Whether the court below ought to issue a commission to determine the exact position of the disputed plots after evidence is led.
Daya Ram
Smt. Gudiya Mishra
Sunita Agarwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
