Dismissed

Raunak Jaiswal v. Nand Kishore Prasad Swarnkar And Ors.

Jharkhand HC18 Apr 2018WPC/3354/2017

Case brief

AI extract

What is this about?

The High Court of Jharkhand dismissed a writ petition challenging an order granting local inspection under Order XXVI Rule 9 CPC in a title suit concerning raiyati rights and possession disputes over land.

What did the court decide?

Writ petition dismissed; the impugned order dated 22.05.2017 was held to have no infirmity.

What the court decided

Raunak Jaiswal Vs Nand Kishore Prasad Swarnkar And Ors. — Property and Title | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 3354 of 2017

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Raunak Jaiswal, son of Late Dinesh Bhagat, resident of Isri Bazar, PO-Isri, PS-Nimiaghat, District-Giridih ... ... Plaintiff/Petitioner

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Versus

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Nand Kishore Prasad Swarnkar, son of Late Baldeo Saw Swarnkar, resident of Isri Bazar, Station Road, PO-Isri, PS-Nimiaghat, District-Giridih

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Parwez Khan, son of Late Suleman Khan, resident of Katras Gudibandh, PO&PS-Katras, District-Dhanbad

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Sri Sunil Kumar Seth, son of Sri Bhagwan Das, resident of Isri Bazar, Station Road, PO-Isri, PS-Nimiaghat, District-Giridih

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... ... Defendants/Respondents

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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

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For the Petitioner : Mr. Bhaiya V. Kumar, Advocate For the Respondent no.1 : Mr. P. K. Deomani, Advocate

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06/18.04.2018 Supplementary affidavit dated 17.04.2018 on behalf of the petitioner is taken on record.

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Service upon the respondents is complete.

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The petitioner is aggrieved of order dated 22.05.2017 passed in Title Suit No. 56 of 2011 by which an application under Order XXVI Rule 9 CPC has been allowed.

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Title Suit No. 56 of 2011 was instituted for a decree of declaration of plaintiff's subsisting raiyati right, title and possession over the suit lands; petitioner is the plaintiff in the suit. Validity of three sale deeds, all dated 19.05.2011, executed by defendant nos. 1 and 2 in favour of defendant no. 3 has also been challenged by the plaintiff. Another relief sought by the plaintiff is for restraining the defendants, their men etc. from making construction and changing nature and character of the suit land. The suit was contested by defendant no. 1 by filing written statement disputing claim of the plaintiff over the suit land. In the pending suit on an allegation that the plaintiff is raising construction an application under Order XXXIX Rule 1 CPC and another application under Order XXVI Rule 9 CPC were filed by the defendant no. 1. While keeping the

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injunction application pending, by an order dated 22.05.2017 the trial judge has ordered local inspection by the Pleader Commissioner under Order XXVI Rule 9 CPC.

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Assailing legality of the impugned order dated 22.05.2017, Mr. Bhaiya V. Kumar, the learned counsel for the petitioner contends that an application under Order XXVI Rule 9 CPC cannot be used to create evidence. The suit land comprises only 7 decimals land and plaintiff is in possession of 1.59 acres land, however, local inspection over entire land has wrongly been ordered. The learned counsel for the petitioner has relied on the judgment in “ Shankar Kumar Sarkar vs. Smt. Umesh Bala Devi” reported in 2016 (2) JLJR 123, “Smt. Kamla Devi & Anr. vs. Mukesh Kumar Chowrasia” reported in 2010 (4) JLJR 198 and “ Barati Mahto & Ors. vs. Thakur Mahto & ors.” reported in 2002 (1) JLJR 488.

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Order XXVI Rule 9 CPC provides that the trial judge for elucidating any matter in dispute can order inspection of the suit property by the Pleader Commissioner. Apparently, report of the local Commissioner is not a substantive piece of evidence; it can be referred to by the trial judge at the time of hearing the application for injunction and/or for any other purpose as indicated under Order XXVI Rule 9 CPC.

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In the suit, the plaintiff has prayed for an order of injunction against the defendants, and in the injunction application there is an allegation by the defendant no. 1 that the plaintiff is raising construction over the suit properties which the plaintiff has denied. Obviously, in the above facts, local inspection under Order XXVI Rule 9 CPC for deciding an application for injunction becomes necessary.

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Finding no infirmity in the impugned order dated 22.05.2017, the writ petition is dismissed.

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(Shree Chandrashekhar, J.)

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Tanuj/-

Raunak Jaiswal v. Nand Kishore Prasad Swarnkar And Ors.

Case brief

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Raunak Jaiswal v. Nand Kishore Prasad Swarnkar And Ors.

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