Jharkhand High Court
Baijnath Gope Aged About 77 Yrs vs Kaushalya Devi W/O Late Nand Kishore ... on 15 July, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
[2025:JHHC:19236]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 195 of 2025
Baijnath Gope aged about 77 yrs., son of Late Bandhu
Ahir, resident of Village - Kandari, P.O. - Mandar, P.S.
Mandar, District - Ranchi.
..... ... Petitioner
Versus
1. Kaushalya Devi W/o Late Nand Kishore Yadav
2. Ashok Kumar Yadav
3. Mukesh Kumar Yadav
4. Abhishek Kumar Yadav
All 2 to 4 sons of Late Nand Kishore Yadav.
5. Pushpa Devi
6. Usha Devi
7. Baby Devi
8. Kumari Laxmi @ Babli
All 5 to 8 daughters of Late Nand Kishore Yadav
All residents of Vill. - Lah Kothi, Ratu Road, P.O-
Hehal, P.S. - Sukhdeo Nagar, Dist.- Ranchi.
..... ... 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.
2. 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.
3. 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
[2025:JHHC:19236]
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.
4. 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.
5. From the impugned order, it transpires that the petitioner
herein has filed two petitions earlier under the same provisions of law,
[2025:JHHC:19236]
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.
6. 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.
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.
8. The court finds that there is no illegality in the impugned
order, as such, this petition is dismissed.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
