Remanded

Ramautar Singh v. Mishri Lal Singh and Ors.

Patna HC19 Jan 2016CWJC/13566/2010

Case brief

AI extract

What is this about?

The High Court held that the trial court acted without jurisdiction in appointing a Pleader Commissioner for local investigation regarding a wall or kabristan, as these were not matters in dispute. The impugned order was set aside, and the suit was referred for expedited disposal.

What did the court decide?

The order dated 24-02-2007 appointing a Pleader Commissioner was set aside; the suit was directed to be disposed of expeditiously.

Ramautar Singh Vs Mishri Lal Singh and Ors. — Property and Title | Patna HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13566 of 2010

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======================================================

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Ramautar Singh S/O Late Ram Ayodhya Singh R/O Mohalla Shahjadpur Ander Killa, Town Hajipur, P.O.Hajipur, P.S.Hajipur Town, Distt-Vaishali

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.... .... Plaintiff- Petitioner Versus

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Mishri Lal Singh S/O Late Tunna Singh R/O Mauza Dighi Kala, P.S.Hajipur Town, P.O.Hajipur, Distt-Vaishali 2. Nagendra Singh S/O Late Tunna Singh R/O Mauza Dighi Kala, P.S. Hajipur Town, P.O.Hajipur, Distt-Vaishali 3. Surendra Singh S/O Late Tunna Singh R/O Mauza Dighi Kala, P.S.Hajipur Town, P.O.Hajipur, Distt-Vaishali 4. Vaidyanath Singh S/O Late Tunna Singh R/O Mauza Dighi Kala, P.S.Hajipur Town, P.O.Hajipur, Distt-Vaishali

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….. Defendant 1^st set/Respondent 1^st set

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Manoj Kumar S/O Prayag Singh R/O Moh Shajhadpur Ander Kila Town, Hajipur, P.S.Hajipur, P.O.Hajipur, Distt-Vaishali 6. Shiv Shankar Singh S/O Prayag Singh R/O Moh Shajhadpur Ander Kila Town, Hajipur, P.S.Hajipur, P.O.Hajipur, Distt-Vaishali 7. Kailash Singh S/O Prayag Singh R/O Moh Shajhadpur Ander Kila Town, Hajipur, P.S.Hajipur, P.O.Hajipur, Distt-Vaishali 8. Veena Devi D/O Prayag Singh R/O Moh Shajhadpur Ander Kila Town, Hajipur, P.S.Hajipur, P.O.Hajipur, Distt-Vaishali

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Nirmala Devi D/O Prayag Singh R/O Moh Shajhadpur Ander Kila Town, Hajipur, P.S.Hajipur, P.O.Hajipur, Distt-Vaishali

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…. Defendant 2^nd set/Respondent 2^nd set.

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Om Prakash Marwari S/O Late Rameshwar Marwari R/O Moh Manik Chauk, P.O.Hajipur, P.S.Hajipur, Distt-Vaishali

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… Defendant 3^rd set/respondent 3^rd set

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Suresh Prasad Singh S/O Late Ayodhya Singh R/O Moh Shahjadpur Ander Kila Town, Hajipur, P.O.Hajipur, P.S.Hajipur Town, Distt-Vaishali 12. Champa Devi W/O Mitan Singh, D/O Late Ayodhya Singh R/O Moh Shahjadpur Ander Kila Town, Hajipur, P.O.Hajipur, P.S.Hajipur Town, Distt-Vaishali 13. Asha Devi W/O Ramashray Singh , D/O Late Ayodhya Singh R/O Moh Shahjadpur Ander Kila Town, Hajipur, P.O.Hajipur, P.S.Hajipur Town, Distt-Vaishali

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Rajkumari Devi W/O Suraj Singh , D/O Late Ayodhya Singh R/O Moh Shahjadpur Ander Kil Town, Hajipur, P.O.Hajipur, P.S.Hajipur Town, Distt-Vaishali

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.... ....Defendant 4^th set/ Respondents 4^th set ====================================================== Appearance : For the Petitioner/s : Mr.Mahesh Narain Parbat, Sr. Advocate. For the Respondent/s : Mr. Surendra Kishore Thakur, Advocate. ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL

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Patna High Court CWJC No.13566 of 2010 (5) dt.19-01-2016

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ORAL ORDER

5 19-01-2016

The petitioner is the plaintiff of Title suit no. 177/91 filed for declaration that the deed of gift dated 30.11.1988 executed by Lado Devi in favour of her maternal niece Samundri Devi wife of Prayag Singh was null and void. The defendant appeared and contested the suit. It was stated, inter alia, that subsequently in 1994 part of the suit land was sold. There exists a „kabristan‟. On an application filed by the defendant under order 26, Rule 9, the trial Court has passed the impugned order appointing a Pleader Commissioner for physical verification of the land and to report. This is the order assailed in the writ petition.

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Mr. Parbat, Sr. Advocate, with reference to the provisions of the order 26, Rule-9 submits that the trial court acted illegally in appointing the Pleader Commissioner and thereby adducing some evidence not relevant in the case. Order 26, Rule 9 states 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

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Patna High Court CWJC No.13566 of 2010 (5) dt.19-01-2016

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the Court.”

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On bare perusal it appears that the Court trying the case has the jurisdiction to appoint a Pleader Commissioner for local investigation if the same was found proper for the purpose of elucidating any matter in dispute. Whether their exist a wall or kabristan is not a matter in dispute in the suit where the petitioner has only questioned the right of Lado Devi to execute a deed of gift in favour of Samundri Devi. Mr. Parbat has rightly relied on 2000(1) PLJR 231 ( Jayanti Kuer & Ors. vs. Laxmi Chand Upadhyay & Ors.) and 1984, PLJR 900, ( Indian Oil Corporation Limited and Ors. vs. Kamlakar Dubey and Anr.). If that be so, the Court should interfere in the matter as, such exercise shall be in excess of the jurisdiction conferred on the Court.

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Since the order was passed in 2007 and the matter is now considered in 2016, Mr. Parbat, Advocate, was directed to take instruction about the status of the suit. On instruction, he states that the suit has not travelled beyond the stage when the impugned order was passed. In other words, the Pleader Commissioner has not submitted the report as per the order passed by the trial Court.

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Counsel for the respondents, on the other hand,

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Patna High Court CWJC No.13566 of 2010 (5) dt.19-01-2016

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submits that such report of the Pleader Commissioner shall be relevant for adjudicating the dispute in the suit. The State has acquired the land and constructed boundary wall. He has, however, not been able to dispel the contention of Mr. Parbat that the physical feature of the subject land is, in fact, not a matter in dispute in the suit.

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Considering the above, I am persuaded to interfere with the order passed by the trial Court. The order dated 24.02.2007 passed by learned Sub Judge VIII, Hajipur (Vaishali) in Title suit no. 177/1991 is set aside. The suit is pending on the file of the trial court since 1991. It is desirable that the same should be taken up and disposed of expeditiously.

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(Kishore Kumar Mandal, J)

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Shyam/-

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Ramautar Singh v. Mishri Lal Singh and Ors.

Case brief

What is this about?

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Ramautar Singh v. Mishri Lal Singh and Ors.

Case brief

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