Dismissed¶29

Mansid Tigga So Late Mariyam Tigga v. Ram Prasad Ram And Anr.

Constitution of India, Article 227 – Civil Procedure Code, Order XXVI Rule 9 – appointment of Pleader Commissioner

Jharkhand HC7 Apr 2026WPC/2992/2012

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What is this about?

Pleader Commissioner; Order XXVI Rule 9 CPC; local investigation; collection of evidence; burden of proof; declaration of title and possession; encroachment; Plot No.943; Plot No.1004; Title Suit No. 74 of 2006; Sub-Judge-VI Hazaribag; Article 227; writ petition dismissed; ex parte disposal against respondents.

What did the court decide?

Order XXVI Rule 9 CPC cannot be used for the purpose of collection of evidence; each litigant must make out its case on its own evidence, and the Court cannot create evidence to improve a party's case by appointing a Pleader Commissioner. ¶28

Mansid Tigga So Late Mariyam Tigga Vs Ram Prasad… — Writ and Judicial Review | Jharkhand HC (2026)

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( 2026:JHHC:9714 )

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 2992 of 2012

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Mansid Tigga, S/o Late Mariyam Tigga

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Peter Tigga, S/o Late Mariyam Tigga

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Amit Kumar Tigga, Son of Late Mariyam Tigga

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Gaurav Tigga, Grandson of Late Mariyam Tigga

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All are residents of Nutan Nagar, Hazaribagh, P.O. Korrah, P.S. Muffasil, District- Hazaribag … Petitioners

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-Versus-

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Ram Prasad Ram, son of Shri Kanhai Sao, resident of Village- Karra, P.O. Korra, P.S. Sadar, District- Hazaribag

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Shrimati Serofina Bakhla, wife of Sri Vinod Walter Soren, resident of New Colony, Korra, P.O. Korra, P.S. Sadar, District- Hazaribag

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… Respondents

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CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners : Mr. Jai Prakash, Sr. Advocate For the Respondents : None

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09/07.04.2026 Heard Mr. Jai Prakash, learned senior counsel for the petitioners.

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2. Vakalatnama has already been filed on behalf of respondent no.1 and notice upon respondent no.2 has already been effected. On 23.03.2026, nobody had appeared on behalf of respondent nos. 1 and 2 and with a view to provide one more opportunity to them, the matter was adjourned.

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3. Today when the matter is taken up, again nobody has responded on behalf of respondent nos. 1 and 2 and in view of that, this matter is being heard and disposed of in their absence.

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4. This writ petition has been filed under Article 227 of the Constitution of India for quashing the order dated 19.04.2012 passed by the learned SubJudge-VI, Hazaribag in Title Suit No.74 of 2006, whereby, the learned Court has been pleased to refuse to appoint Pleader Commissioner and dismissed the petition dated 14.08.2008, filed by the original petitioner.

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5. Mr. Jai Prakash, learned senior counsel for the petitioners submits that the plaintiff/respondent no.1 filed Title Suit No.74 of 2006 for declaration of

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-1-

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W.P. (C) No. 2992 of 2012

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( 2026:JHHC:9714 )

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title and possession over 0.09 acre out of 0.12 acre upon Plot No.943 and 0.15 acre out of 0.30 acre over Plot No.1004 (Schedule A to the plaint) and for direction to the respondents to remove encroachment of 10 feet x 10 feet + 8 feet x 10 feet over Plot No.943 on the grounds interalia that the lands originally recorded in the name of Unhutch Telli who died leaving behind 5 sons. He submits that the brothers were selling the lands with consent of each other and some lands were sold to Sudama Shukla who become absolute owner of Schedule A lands and subsequently transferred the same to plaintiff by registered deeds. He then submits that the further case of the plaintiff is that Plot No.943 is surrounded by boundary wall and the original petitioner has constructed a house outside the boundary of the plaintiff but has encroached 10 feet X 10 feet + 8 feet x 10 feet. He next submits that on notice, the original petitioner appeared as defendant no.2 in the said suit and filed written statement, contained in Annexure-2 of the writ petition. He submits that there was contradictory claim of possession by making construction and residing therein and in that view of the matter, the original petitioner has filed a petition under Order XXVI Rule 9 of the Code of Civil Procedure for appointment of Pleader Commissioner, however, the learned Court has been pleased to refuse the said prayer and dismissed the petition by the impugned order dated 19.04.2012.

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6. Mr. Jai Prakash, learned senior counsel for the petitioners also submits that the original petitioner was contesting the claim of the plaintiff as to ownership and possession over the suit property and in view of that, the petition was filed for finding out the correct position of the land, however, the learned Court has rejected the said petition.

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-2-

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W.P. (C) No. 2992 of 2012

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( 2026:JHHC:9714 )

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7. The learned Court while rejecting the said petition vide order dated 19.04.2012 has found that the plaintiff’s suit has been instituted for declaration of plaintiff’s title and possession over Schedule A suit land and for removal of encroachment over the land of the plaintiff as well as other relieves. The learned Court has held that it is the duty of the plaintiff to establish his title, establish his possession and establish the factum of encroachment. The burden lies heavily on the plaintiff and defendant is required to rebut or burden shifts on defendant to rebut only when plaintiff discharges his onus. The Court has also opined that oral and documentary evidence is sufficient to decide the dispute and that case is of six years old at the time of passing of the impugned order and in that view of the matter, the learned Court has been pleased to reject the said petition.

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8. The provision as contained under Order XXVI Rule 9 of the Code of Civil Procedure cannot be used for the purpose of collection of the evidence, it is based upon the premise that if the litigants are before the Court of law and the onus upon one or the other litigants to make out case on their own leg and there cannot be an opportunity being given by the Court to create evidence to improve the case by way of appointing the Pleader Commissioner.

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9. In view of the aforesaid facts, the Court finds that the learned Court has rightly passed the impugned order. There is no illegality in the impugned order and, as such, this writ petition is dismissed.

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(Sanjay Kumar Dwivedi, J.)

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Dated: 7^th April, 2026 Ajay/

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-3-

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W.P. (C) No. 2992 of 2012

Mansid Tigga So Late Mariyam Tigga v. Ram Prasad Ram And Anr.

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Mansid Tigga So Late Mariyam Tigga v. Ram Prasad Ram And Anr.

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