Jharkhand High Court
Kamla Lakra vs Pramodit Kachhap on 3 May, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 830 of 2023
Kamla Lakra, aged about 63 years, W/o. Late Beni Lakra, resident of
village- Bara Ghaghra, P.O. & P.S. Doranda, District - Ranchi.
........ Plaintiff/Petitioner
Versus
1. Pramodit Kachhap, W/o. Late Joseph Kachhap
2. Nirmala Kachhap, W/o. Anurajan Tirkey
3. Pushpa Kahhap, W/o. Acho Lakra
4. Akhilesh Kachhap, S/o. Late Anthony Kachhap
5. Robert Nicent Kachhap, S/o Anthony Kachap,
All residents of village - Bara Ghaghra, P.O. & P.S. Doranda,
District - Ranchi
........ Defendants/Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner: Mr. Arun Kumar, Advocate
Mr. Sushil Kumar Ekka, Advocate
For the Opp. Parties: Md. Razaullah Ansari, Advocate
Mr. Shahid Khan, Advocate
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09/Dated: 3rd May, 2024
Prayer
1) This petition filed under Section 227 of the Constitution of India
is directed against the order dated 30.05.2023 passed by the learned
Sub. Judge-IV, Ranchi in Original Suit No.35 of 2021, whereby and
whereunder, the petition filed under Order 26, Rule 9 of the Code of
Civil Procedure (in short 'CPC') has been rejected.
Brief facts of the case:
2) Brief facts of the case, as per the pleadings made in the petition
filed under Order 26 Rule 9 of the CPC read as under:-
2.1) The plaintiff has instituted the suit for declaration of her
valid right, title and possession over the suit property as well as for
delivery of khas possession over the suit property through the process
of the court.
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2.2) The plaintiff has also prayed for appointment of a Survey
Knowing Pleading Commissioner for the measurement of the
encroached portion of the suit property and after demarcating the
same order be passed for vacating the same.
2.3) The plaintiff has purchased the suit property admeasuring
an area of 40 decimals appertaining to Khata No. 115, Plot No. 216
situated at Village Bara Ghaghra, P.S. Doranda, Thana No. 221,
District Ranchi on 03.02.2011 through the registered Sale Deed being
Deed No. 4325, Volume No.-1, after taking permission under Section
46 of the Chotanagpur Tenancy Act from the competent authority from
Deba Oraon (Kachhap), son of Laku Oraon, resident of Village Bara
Ghaghra, P.S. Doranda, District Ranchi and thereafter mutated the
same and is paying rent regularly and continuously.
2.4) The defendants have stated in their written statement that
they have no concern with the Plot No.216.
2.5) The plaintiff had earlier filed a demarcation case being
Demarcation Case No. 71/2012-13 for the measurement of the
encroached portion of the suit property admeasuring an area of 40
decimals under Khata No. 115, Plot No. 216 situated at Village Bara
Ghaghra, P.S.- Doranda, Thana No.- 221, District - Ranchi and the
Amin, Town Anchal, namely Buru Lohra has measured the same on
09.04.2013 in the presence of the villagers of the locality and has
submitted his report and map before the Circle Officer, Town Anchal,
Ranchi in which he has clearly mentioned that out of 40 decimals of
the suit land, 26 decimals is a vacant portion, shown in "RED" colour
in the map, the portion of 9 decimal has been shown in "YELLOW"
colour in the map and the same has been encroached by Siril Ekka @
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Siril Kachhap, son of Joseph Ekka @ Joseph Kachhap (original
defendant) and has constructed house over the encroached portion
i.e. on 9 decimals (out of 40 decimals) the 5 decimals of land shown in
"BLUE" colour in the traced map which is in Doranda- Namkum Road.
2.6) The Amin, Town Anchal, has submitted his report as well
as traced map before the C.O., Town Anchal, Ranchi on 10.06.2013
and the Circle Officer, Town Anchal, Ranchi on the basis of the report
and traced map submitted by Anchal Amin has passed the order on
17.07.2013.
2.7) From the pleadings as well as the documents filed by
both the parties, the Learned Court has settled the issues on the facts
stated above.
2.8) The suit is already running for the plaintiff's evidence and
all the witnesses have supported the case of the plaintiff.
2.9) For the proper adjudication of the suit as well as to meet
out the controversy between the parties, the plaintiff had filed the
application for appointment of a survey knowing Pleader
Commissioner, who will ascertain/measure the suit property and
submit the report on the following points :-
"Whether the defendants have encroached the portion over the portion
of the suit property measuring an area of 9 decimals (out of 40
decimals) and have constructed the same under Khata No. 115, Plot
No. 216 situated at Village Bara Ghaghra, P.S. District Ranchi"
Doranda, Thana No. 221, District - Ranchi."
3) However, the learned court vide order dated 30.05.2023 has
rejected the aforesaid application by appreciating the scope of
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provision of Order 26, Rule 9 CPC, against which the present petition
has been preferred.
Argument on behalf of learned counsel for the petitioner
4) Mr. Arun Kumar, learned counsel appearing for the plaintiff-
petitioner, has submitted that while rejecting the petition filed under
Order 26, Rule 9 CPC, a serious error has been committed by the
learned Trial Court as the same will be said to be the effective means
to have the right to ascertain the issue of encroachment as has been
alleged by the plaintiff upon the defendants, but discarding the
aforesaid fact, the said petition has been rejected.
5) In the aforesaid premise the learned counsel for the petitioner
has submitted that the impugned order and the reason assigned for
rejecting the application of the petitioners dated 30.05.2023 has no
value in the eye of law as such requires interference of this Court.
Argument on behalf of learned counsel for the respondents
6) While, on the other hand, Md. Razaullah Ansari, learned
counsel appearing for the respondents-defendants, has defended the
order passed by the learned Trial Court by taking the ground that the
provision as made under Order 26, Rule 9 CPC is not meant to create
evidence to be considered by the learned Trial Court.
7) The learned court, after taking into consideration the aforesaid
fact since has rejected the said petition, the same cannot be said to
be suffering from any error.
Analysis
8) It is evident from the factual aspects as referred above that a
declaratory suit has been filed by the plaintiff (petitioner herein) for
declaration of right and title over 09 decimals of land appertaining to
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Khata No.115, Plot No.216, situated at Village - Bara Ghaghra, P.S.
Doranda, Thana No.221, District - Ranchi.
9) The plaintiff at the stage of evidence has filed a petition under
Order 26, Rule 9 CPC for appointment of Survey Knowing Pleading
Commissioner for getting a report as to whether the defendants have
encroached upon the portion of the suit property measuring an area of
09 decimals out of 40 decimals under Khata No. 115, Plot No. 216
situated at Village Bara Ghaghra, P.S. Doranda, Thana No. 221,
District Ranchi, and have constructed a house.
10) Serious objection was made on behalf of the defendants
(Opposite Parties herein).
11) The learned Court by appreciating the scope of provision of
Order 26, Rule 9 CPC has rejected the said petition, against which the
present petition.
12) This Court has heard the learned counsel appearing for the
parties, gone across the finding recorded by the learned Court in the
impugned order.
13) The issue involved herein is the order passed by the learned
Trial Court rejecting the prayer made for allowing Survey Knowing
Pleading Commissioner to be appointed in view of the provision of
Order 26, Rule 9 CPC.
14) This Court before entering into the legality and proprietary of the
impugned order needs to refer herein the underlined scope of Order
26, Rule 9 CPC by making reference of the aforesaid provision which
reads as under:-
"R. 9. Commissions to make local investigations-In any suit in
which the Court deems a local investigation to be requisite or
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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 therein
to the Court.
Provided that, where the State Government has made
rules as to the persons to whom such commission shall be
issued, the Court shall be bound by such rules."
15) It is evident from the aforesaid provision that the object of local
investigation under Rule 9 is to elucidate 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 therein to the Court.
16) Further, it is well settled that the object of local investigation by
appointing Commissioner is not to collect evidence which can be
adduced in the Court. It is the Court, who has to decide the matter on
the basis of evidence to be adduced by the parties or the evidences
already on record.
17) Reference in this regard may be made to the judgment passed
by the Hon'ble Apex Court in the case of Praga Tools Corpn. Ltd. v.
Mahboobunnissa Begum, (2001) 6 SCC 238. The relevant
paragraph of this judgment is being quoted herein under:-
"12. The State of Andhra Pradesh has filed objections to
the findings of the trial court. On behalf of the appellants
and the State of Andhra Pradesh it was submitted that the
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trial court could not have discarded the findings of the
Court Commissioner. It was submitted that as per the
orders of this Court, it was only this Court which could hear
objections on the report of the Commissioner. We see no
substance in this submission. This Court had directed the
trial court to record findings. The trial court may have
appointed a Commissioner to carry out survey but
ultimately the findings had to be recorded by the trial court.
The report of the Commissioner could only be an aid to the
trial court in arriving at its findings. The trial court has
allowed parties to lead oral as well as documentary
evidence. The trial court has complied with the directions of
this Court."
18) The Hon'ble Apex Court in the case of Tulamaya Chettri Vrs.
Younarayan Pradhan, reported in (2004) 3 CCC 318, has held as
under:
"4. Order 26, Rule 9, CPC authorises the Court to appoint
a commissioner if it considers a local investigation to be
requisite or proper for the purpose of elucidating any
matter in dispute, or for other reasons mentioned therein.
The matter is thus left to the discretion of the Court. The
discretion is however a judicial one and not an arbitrary
exercise of the power. The object of such appointment is to
obtain evidence from the spot itself which helps the Court to
properly understand and assess the evidence on record. The
report submitted by the Commissioner is a piece of evidence
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which has to be considered along with other evidence on
record.
19) The issue pertaining to provision of Order XXVI Rule 9 of the
C.P.C. also fell for consideration before the various High Courts,
reference in this regard may be made to the order passed by the
Uttrakhand High Court in the case of Rajesh Kumar Gautam Vrs.
M.M.V.G. Ashram, reported in AIR 2004 U'Chal 30 (31), wherein, it
has been observed that purpose of getting report from Survey
Knowing Commissioner to find out the actual State of Affairs in
between the parties and the appointment of Survey Knowing
Commissioner for that purpose will not bound to collect the evidence
rather it will be elucidated any matter in dispute. Of course, there is an
issue for collecting evidence on behalf of the parties but there is no
bar for explaining the situation and elucidating the disputed
possession of the land, that too in a situation where the parties are
claiming for encroachment of land by other side.
20) Similarly, in the case of Saraswathy Vrs. Viswanathan,
reported in 2002 (2) CTC 199, it has been held that object of
appointment of Commissioner is not to collect evidence but to
elucidate matter which are local in character.
21) The law is also well settled that if the plaintiff is approaching the
court of law and is trying to make out a case in his favour, onus is
upon the plaintiff or the defendant, as the case may be, to stand his
case on his own evidence and the documents. If the petition filed
under Order 26, Rule 9 CPC will be allowed, then a serious prejudice
would be caused to either of the parties and the same will be nothing
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but the adjudication of the issue which depends upon the report of the
Survey Knowing Pleading Commissioner.
22) This Court, now coming back to the impugned order wherein
the learned Court has considered the aforesaid aspect of the matter
as also taking into consideration the settled position of law has
rejected the said petition.
23) The learned counsel for the petitioner has not pointed out any
plausible ground or cogent reason to interfere with the order
impugned.
24) Since the instant petition has been filed under Article 227 of the
Constitution of India thus this Court also intends to go through the
scope of Article 227 of the Constitution of India.
25) Dealing with the scope of Article 227 of the Constitution of India,
Hon'ble Apex Court in the case of Shalini Shyam Shetty Vrs.
Rajendra Shankar Patii, reported in (2010) 8 SCC 329 has been
pleased to laid down therein regarding the scope of Article 227 which
relates to the supervisory powers of the High Courts and by taking aid
of the judgment rendered by the Hon'ble Full Bench of Calcutta High
Court in the case of Dalmia Jain Airways Ltd. Vrs. Sukumar
Mukherjee, reported in AIR 1951 Calcutta 193, wherein it has been
laid down that Article 227 of the Constitution of India does not vest the
High Court with limitless power which may be exercised at the court's
discretion to remove the hardship of particular decisions. The power
of superintendence confers power of a known and well recognized
character and should be exercised on those judicial principles which
give it its character. In general words, the High Court's power of
superintendence is a power to keep the subordinate courts within the
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bounds of the authority, to see that they do what their duty requires
and that they do it in a legal manner.
26) The power of superintendence is not to be exercised unless
there has been; (a) An unwarranted assumption of jurisdiction, not
vested in a court or tribunal; or (b) gross abuse of jurisdiction; or (c) an
unjustifiable refusal to exercise jurisdiction vested in courts or
tribunals.
27) Further, in the aforesaid judgment the Hon'ble Apex Court has
taken aid of a judgment rendered in the case of Mani Nariman
Daruwala Vrs. Phiroz N. Bhatena, reported in (1991) 3 SCC 141
wherein it has been laid down that in exercise of jurisdiction under
Article 227, the High Court can set aside or reverse finding of an
inferior court or tribunal only in a case where there is no evidence or
where no reasonable person could possibly have come to the
conclusion which the court or tribunal has come to.
28) The Hon'ble Apex Court has made it clear that except to this
limited extent the High court has no jurisdiction to interfere with the
finding of facts.
29) Further, the judgment rendered by the Hon'ble Apex Court in
the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing
Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has been laid
down that the High Court under Article 227 cannot assume unlimited
prerogative to correct all species of hardship or wrong decisions. Its
exercise must be restricted to grave dereliction of duty and flagrant
abuse of fundamental principles of law and justice.
30) On the basis of the discussion made herein above and taking in
to consideration of settled connotation of law, it is the considered view
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of this Court that the trial court has not committed any error in passing
the impugned order dated 30.05.2023 warranting interference by this
Court under Article 227 of the Constitution of India, since the court
has exercised its discretionary power which is within its jurisdiction
and suffer from no error.
31) Accordingly, the Civil Miscellaneous Petition, being devoid of
any merit, is hereby dismissed.
(Sujit Narayan Prasad, J.)
A.F.R.
Manoj/uploaded
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