Baijnath Gope Vs Kaushalya Devi

Kumari Laxmi @ Babli All 5 to 8 daughters of Late Nand Kishore Yadav All residents of Vill. - Lah Kothi, Ratu Road, P.OHehal, P.S. - Sukhdeo Nagar, Dist.- Ranchi.

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..... … Opposite Parties

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CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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-----For the Petitioner : Mr. Rajiv N. Prasad, Advocate. For the O.P. Nos. 1 to 8 : Mr. Lalit Kumar Singh, Advocate

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04/ 15.07.2025 Heard Mr. Rajiv N. Prasad, learned counsel appearing for the petitioner and Mr. Lalit Kumar Singh, learned counsel appearing for the opposite parties.

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This petition has been filed under Article 227 of the Constitution of India, wherein prayer has been made for setting aside the order dated 01.02.2025, passed in Misc. Civil Application No. 45 of 2025 [Title Suit No. 41 of 2008] by the learned Additional Munsif, Ranchi, whereby, the petition filed under Order-XXVI Rule-9 CPC has been rejected by the learned court.

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Mr. Rajiv N. Prasad, learned counsel appearing for the petitioner submits that the petitioner-plaintiff instituted the Title Suit No. 41 of 2008 for a decree declaring the right, title and interest of the plaintiff over the suit property and confirmation of possession of the

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[2025:JHHC:19236]

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plaintiff or in the alternative a decree directing the defendant to execute and get registered deed of re-conveyance in favour of the plaintiff in respect of the suit property and also for a decree for declaring the sale Deed Nos. 9798 dated 5.7.1973 and 1414 dated 14.2.1978 as null and void ab-intio and not binding upon the plaintiff. He submits that on notice, the defendants have appeared and filed their written statement and thereafter the suit has proceeded. He further submits that the petitioner herein has brought the evidence regarding his possession over the suit property, however, the defendants disputed the same and claimed their possession and therefore the proper adjudication of the controversy between the parties, the petitioner-plaintiff filed a petition under Order-XXVI Rule-9 read with Section 151 of CPC on 23.01.2025 for appointment of the local pleader commissioner to make local investigation with regard to possession of the suit property. He submits that by the impugned order, the learned court has rejected the said prayer on the erroneous ground holding that the said petition is barred by res-judicata. He further submits that merely because earlier petition was filed under Order-XXVI Rule-9 read with Section 151 of CPC, does not amount to res-judicata. He also submits that the learned court has erroneously held that for the purpose of procuring evidence through the court, the said petition has been filed. He submits that the spirit of the provisions of Order-XXVI Rule-9 of CPC has not been considered in the right perspective by the learned court. On these grounds, he submits that the impugned order may kindly be set aside.

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On the other hand, Mr. Lalit Kumar Singh, learned counsel appearing for the opposite parties has opposed the prayer and submits that earlier twice the same petitions have already been filed by the petitioner, which have been rejected by the learned court by the earlier two orders and thereafter the third one was filed, as such, the learned court has rightly passed the said order.

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From the impugned order, it transpires that the petitioner herein has filed two petitions earlier under the same provisions of law,

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[2025:JHHC:19236]

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which have been rejected by the learned court by the orders dated 20.03.2009 and 01.10.2018 and in that view of the matter, the learned court has found that third petition is barred by res-judicata.

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It is well-settled that even in a pending suit if similar nature of petition is being filed, which has already been decided earlier, the principle of res-judicata is attracted. A reference may be made to the judgment passed by the Hon’ble Supreme Court in the case of Mahboob Sahab v. Syed Ismail and others , reported in (1995) 3 SCC 693.

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7. In view of the above, the court finds that there is no illegality in the finding of the learned court on the point of res-judicata. It is further well settled that the said petition cannot be allowed in the routine way and that too if the evidence through the court is being tried to be recorded on the basis of the said petition and moreover the possession is the subject matter of the title suit, it is for the respective parties to lead evidence to prove the right, title, interest and possession over the suit property.

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The court finds that there is no illegality in the impugned order, as such, this petition is dismissed.

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(Sanjay Kumar Dwivedi, J.)

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Amitesh/-

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Baijnath Gope v. Kaushalya Devi

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Baijnath Gope v. Kaushalya Devi

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