Dismissed

Ahdil Mian v. Manjoor Mian

Jharkhand HC22 Jun 2023WPC/2583/2019

Case brief

AI extract

What is this about?

A writ petition was filed challenging an order dismissing an application under Order XXVI Rule 9 CPC to appoint a pleader commissioner for a survey of land in a title suit. The court held that since the area and boundary of the land were already pleaded and evidence was closed, the use of the commission was unnecessary, and the writ petition was dismissed.

What did the court decide?

The writ petition was dismissed; no interference was warranted in the order of the Additional Munsif dismissing the application for appointment of a pleader commissioner.

Ahdil Mian Vs Manjoor Mian — Property and Title | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(C) No. 2583 of 2019

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Ahdil Mian

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Akhtar Ali

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Md. Mokhtar

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Md. Jabar … Petitioner(s) Versus

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Manjoor Mian

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Ashma Khatoon

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Fatma Khatoon

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Rabuna Khatoon

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Khalijan Khatoon

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Asgar Mian

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Dhalia Khatoon

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Sahban Mian

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Allauddin Mian

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Aslam Mian

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Sahjali Khatoon

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Rasool Mian

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Suleman Mian

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Shamim Mian … Respondent(s)

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CORAM : SRI ANANDA SEN, J .

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For the petitioner(s): Mr. Sudhir Kumar Sharma, Advocate. For the respondent(s):

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06/22.6.2023:

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Heard the counsel for the petitioners.

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In this petition, the petitioners have challenged the order dated 28.3.2019 whereby, applications filed under Order XXVI Rule 9 CPC for appointment of Survey Knowing Pleader Commissioner, filed in Title Suit Nos. 167 of 1999 has been dismissed by the learned Additional Munsif-VI, Giridih.

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Counsel for the petitioners in support of his submission submits that it is necessary to give a report on the nature of the land and the physical feature for proper appreciation of the case. He submits that it is the case of the plaintiffs that the land was converted into Dhan Khet (agricultural land) and it is the defendants case also but they are claiming by virtue of Bhoodan Parcha, whereas the plaintiffs are claiming by virtue of Hukumnama.

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Order XXVI Rule 9 reads as under;

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“9. Commissions to make local investigations.—In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

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Provided that, where the State Government has made rules as to the persons to whom such commission

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shall be issued, the Court shall be bound by such rules.”

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The purpose of Order XXVI Rule 9 is not creating any evidence. Evidence should be led by the parties in the suit for which, Order XXVI Rule 9 cannot be resorted to.

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The plaintiffs have filed an application in Title Suit No. 167 of 1999 under Order XXVI Rule 9 CPC and paragraph 3 of the said application reads as under;

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3. That in order to appreciate the evidences of the parties, it is necessary that a Survey Knowing Advocate Commissioner be appointed to visit the schedule C lands and report on following points;

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(a) to measure and find out schedule C lands in suit.

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(b) That if there are 4 topras of Dhanket within Schedule C

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Lands.

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(c) That any other special feature visible on schedule C Lands.”

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Thus, the petitioners want to appoint pleader commissioner to ascertain the aforesaid facts.

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When I go through the plaints, I find that the plaintiffs themselves have given the area of the land in the Schedule and the boundary thereof. Further so far as point (b) is concerned, I find that the petitioners themselves in their plaint mentioned the area and the nature of land. These two facts, which the petitioners have pleaded in the plaint, must be substantiated by leading evidences.

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In this case, the petitioners-plaintiffs have also led evidence and their evidence has been closed. Thus the ground taken by the petitioners-plaintiffs to invoke Order XXVI Rule 9 is non est . Further, ground (c) is absolutely vague, which is not warranted to be considered. Thus the court below has rightly rejected the petition.

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In view of the aforesaid facts, I find no merit in the application filed under Order XXVI Rule 9 C.P.C. Thus, no interference is warranted in the impugned order. 11. Accordingly, writ petition is dismissed.

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(ANANDA SEN, J.)

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Anu/-CP2.

Ahdil Mian v. Manjoor Mian

Case brief

What is this about?

What did the court decide?

Ahdil Mian v. Manjoor Mian

Case brief

What is this about?

What did the court decide?

What the court decided

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