Bodhiram Nishad Vs Lallu Prasad Singh

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2024:CGHC:41017

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WP227 No. 86 of 2021

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Bodhiram Nishad S/o Tokharam Nishad Aged About 45 Years R/o Madhuban Road, Juna Bilaspur, Police Station- City Kotwali, Tahsil And District- Bilaspur, Chhattisgarh., District : Bilaspur (C.G.)

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... Petitioner

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versus

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Lallu Prasad Singh S/o J. P. Singh Aged About 50 Years R/o Mahurbandpara, Kanker, Tahsil And District- Kanker, Chhattisgarh. (Wrongly Mentioned DistrictBilaspur In Impugned Order), District : Kanker (C.G.)

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... Respondent

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For Petitioner : Mr. Ratnesh Kumar Agrawal, Advocate For Respondent : Mr. B. P. Gupta, Advocate.

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Hon’ble Mr. Justice Naresh Kumar Chandravanshi

Order on Board

17/10/2024

Heard.

1. Learned counsel appearing for the petitioner / defendant would submit that respondent / plaintiff filed a Civil Suit bearing No. 170-A/ 2015 (Lallu Prasad Singh Vs. Bodhiram Nishad) before Civil Judge, Class-II, Bilaspur, in which, vide judgment dated 25.03.2010 (Annexure P-4), the suit was decreed in favour of plaintiff, but in first appeal preferred against the judgment dated 25.03.2010, vide judgment dated 17^th April, 2015, 4^th Upper District Judge, Bilaspur remitted back the matter to the trial Court directing it to get demarcated the suit land and pass judgment afresh in accordance with law and in pursuance thereof, learned trial Court appointed commissioner to Tahsildar, Bilaspur and directed him to get

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demarcated the suit land, thereafter, demarcation of suit land was carried out by the commissioner / Tahsildar, Bilaspur on 19.09.2019 and demarcation report dated 03.10.2019 was submitted before the trial Court. He further submits that since demarcation report was not conducted as per law, therefore, petitioner / defendant filed an application under Order 26 Rule 10 read with Section 151 of the CPC (Annexure P-8) on 22.10.2019 to call commissioner / Tahsildar, Bilaspur to get cross-examined him. Thereafter, commissioner / Tahsildar, Bilaspur was called and on 24.01.2020, Tahsildar - T.R. Bhardwaj was examined and crossexamined by the parties. Thereafter, vide impugned order dated 05.01.2021, learned 6^th Civil Judge, Class-II, Bilaspur dismissed objection raised by the petitioner – defendant against the commissioner report, whereas, there are various illegality committed by the commissioner / Tahsildar, Bilaspur while conducting demarcation of the suit land, but learned trial Court without considering those facts has dismissed the objection raised by the petitioner / defendant, as such, the impugned order dated 5.1.2021 suffers from illegality or perversity, therefore, it may be set aside and the trial Court may be directed to obtain fresh demarcation report of the suit land.

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2. On the other hand, learned counsel appearing for the respondent/ plaintiff would submit that in pursuance of application filed by petitioner / defendant under Order 26 Rule 10 read with Section 151 of the CPC, commissioner / Tahsildar, Bilaspur was called for and he was cross-examined by the petitioner / defendant at length, thus, the relief, which has been sought for by petitioner/defendant, vide aforesaid application has been granted, thereafter, he cannot be permitted to raise any oral objection on demarcation report, as such, the impugned order does not suffer any illegality of perversity warranting interference of this Court, hence, the petition is liable to be dismissed.

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3. I have heard learned counsel appearing for the parties and perused the material available on record.

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4. Perusal of impugned order dated 5.1.2021 would show that the same has been passed on the basis of said objection raised by the petitioner / defendant vide application (Annexure P-8) dated 22.10.2019 filed under Order 26 Rule 10 read with Section 151 of the CPC. In that application, the petitioner / defendant had raised objection to the effect that commissioner report has not been prepared in accordance with law, therefore, the commissioner be called for his examination / cross-examination with regard to the report prepared by the commissioner / Tahsildar, Bilaspur. In compliance of that, Commissioner / Tahsildar, Bilaspur was called upon and he has been examined and crossexamined by both the parties on 24.01.2020 and, if there was any infirmity in preparation of commissioner report, then on this count, he has been crossexamined by the petitioner-defendant. Thus, purpose of filing application under Order 26 Rule 10 read with Section 151 of the CPC (Annexure P-8) has been completed. Hence, learned trial Court ought not to have considered again on application (Annexure P-8) filed by petitioner under Order 26 Rule 10 read with Section 151 of the CPC, even on the ground of oral objection made by petitioner / defendant. In other words, since the relief, as has been sought for by the petitioner/defendant in an application (Annexure P-8) has been exhausted, therefore, if he has any objection with regard to commissioner report, then he can raise that objection during final arguments of the case, after examination of commissioner / Tahsildar, Bilaspur raising such objection, at this stage, cannot be permitted. Hence, I do not find any illegality or infirmity in the order impugned warranting interference of this Court.

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5. Consequently, the writ petition fails and is hereby dismissed. No cost (s).

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AMIT Digitally signedby AMIT KUMAR KUMAR DUBEYDate: DUBEY 2024.10.2310:54:16 +0530

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Sd/(Naresh Kumar Chandravanshi) Judge

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Bodhiram Nishad v. Lallu Prasad Singh

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Bodhiram Nishad v. Lallu Prasad Singh

Case brief

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