Patna High Court
Premlata Devi vs Dr. Swatantra Kumar Singh And Ors on 23 January, 2024
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1155 of 2018
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Premlata Devi W/o Sri Lal Prasad Singh, Resident of Village- Nado, P.S.
-Sour Bazar, District- Saharsa. At Present Resident of Mohalla- Radha
Krishna Nagar, Ward No. 08/12, P.S. and District- Saharsa
... ... Petitioner
Versus
1. Dr. Swatantra Kumar Singh S/o Late Dashrath Prasad Singh
2. Smt. Pratibha Singh W/o Dr. Swatantra Kumar Singh Both 1 and 2 Resident
of Mohalla- Radha Krishna Nagar, Ward no.08/12, Simraha, Saharsa, P.S.
and Dist. Saharsa.
3. Mithilesh Kumar Singh
4. Naresh Kumar Singh
5. Rana Ramesh Kumar Singh All 3 to 5 Sons of Raj Ballabh Singh. All 3 to 5
Resident of Mohalla- Radha Krishna Nagar, Ward no.08/12, Simraha,
Saharsa, P.S. and District-Saharsa.
6. Sri Jitendra Narayan Singh S/o Late Bhogendra Prasad Singh, Resident of
Village Mahua, P.S. - Ghailadh, District- Madhepura.
... ... Respondents
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Appearance :
For the Petitioner/s : Mr. Arbind Kumar Singh, Advocate
For the Respondent No.2: Mr. Abhinav Alok, Advocate
Mr. Priyajee Pandey, Advocate
For the Resp. Nos. 3-5 : Mr. Hritu Raj, Advocate
Mr. Sanjeev Kumar, Advocate
Mr. Aashish Kumar Sinha, Advocate
Ms. Preeti, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 23-01-2024
The instant Civil Misc. Petition has been filed by the
petitioner under Article 227 of the Constitution of India for
setting aside the order dated 19th June, 2018 passed in Title Suit
No. 287 of 2014 by learned Sub. Judge-IV, Saharsa whereby and
whereunder the learned trial court rejected the petition dated
22.12.2017
filed by the petitioner for appointment of Survey
Patna High Court C.Misc. No.1155 of 2018 dt. 23-01-2024
Knowing Pleader Commissioner.
02. The facts of the case as it appears from the record are
as follows:-
(i) The respondents-1st set are plaintiffs in Title Suit No.
287 of 2014 and the petitioner is the defendant no.1 before the
learned trial court. In Title Suit No. 287 of 2014, the plaintiffs
sought for the following relief(s):-
(I) That it may kindly be inquired into
and declared that the suit land pertains to the
Rasta of the plaintiffs and they have got
sufficient easementary rights over it.
(II) That the same way it may also be
declared that obstructions raised over the suit
land by the defendants are totally illegal and
unlawful and they have not acquired any right
or title over it by its forceful and illegal
occupation.
(III) That the defendants be ordered by
issuing a decree to this effect to remover the
obstruction raised by them over the suit land
and give its empty possession to the plaintiffs.
(IV) That in case if the defendants do
not remove their illegal obstruction from over
the suit land by their own they may be made
to vacate it by the process of court and the
plaintiffs be made to sit in possession of it.
(V) That taking into account the
gravamen of the situation hearing of the case
may be held on day to day basis and by
passing a decree of permanents injunction the
defendants may permanently be retrained
from going over the suit land.
(VI) That as an interim measure the
defendants may further be restrained by
Patna High Court C.Misc. No.1155 of 2018 dt. 23-01-2024
passing an order of injunction to not improve
or consolidate their illegal occupation and
change physical features of the suit land in
any manner.
(VII) That any other or further
equitable relief for which the plaintiffs are
found entitled may kindly be granted to
them."
(ii) Both the plaintiffs and defendants are purchasers from
same vendor, one Narayan Sah. Plaintiff/respondent no. 2
purchased 5 katha of land in the year 1972 in old khata no. 53,
old khesra no. 357 and old khata no. 50, old khesra no. 360. The
said Narayan Sah also gave the plaintiff/respondents 10 dhurs of
land for rasta (motorable road). But, in the sale-deed the vendor
did not mention about the rasta and subsequently, after two
years, sold 3 katha land to the defendant/petitioner-Premlata
Devi in the plot no. 347 leaving the passage of the plaintiffs
intact. However, while describing the boundary in the sale deed
of defendant no.1/petitioner, instead of specifically showing
passage, i.e., rasta of the plaintiffs, the vendor mentioned about
his land in the northern side of the boundary. It appears from the
plaint that the plaintiffs got the map of their house passed from
the municipality in the year 1989 and even in the map rasta
given by the vendor in the East has been shown. The plaintiffs
have been using this passage continuously and have submitted
Patna High Court C.Misc. No.1155 of 2018 dt. 23-01-2024
that it was only egress to the main road from their house. The
plaintiffs further stated that after 32 years of continuous use, in
the month of March, 2004, while the plaintiffs were away to
their native place, the defendant-1st set raised a wall and also
sunk a tube-well in the passage and blocked the only path of the
plaintiffs. The plaintiffs moved before the SDM for removal of
illegal blockade and a proceeding under Section 147 of Cr.P.C.
was initiated vide order dated 06.07.2004, which was
challenged by the petitioner/defendant by filing Criminal
Revision No. 274 of 2004. The said criminal revision was
dismissed by the learned Fast Track Court-VI, Saharsa which
held the order initiating proceeding under Section 147 Cr.P.C. to
be legal and valid and the order of the learned Fast Track Court-
VI, Saharsa was not interfered by the High Court and it
dismissed the Criminal Misc. 42739 of 2006 vide its order dated
05.05.2009 filed against order of Criminal Revision No. 274 of
2004. Subsequently, the proceeding before the SDM, which was
continuing after Criminal Revision No. 274 of 2004, ended in
dropping the proceedings after 07 years of its initiation in Misc.
Case No. 484 of 2004 in 2011. The plaintiffs/respondents filed
Criminal Revision No. 1377 of 2011 in the High Court which
was decided against them and against the order of this Court, the
Patna High Court C.Misc. No.1155 of 2018 dt. 23-01-2024
plaintiffs moved before the Hon'ble Supreme Court by filing
SLA (Criminal) No. 18804 of 2014 and vide order dated
26.09.2014, the Hon'ble Supreme Court disposed of the SLA
(Criminal) with observation to institute a civil suit
claiming easementary rights with a prayer for ad-interim relief
and thus, the plaintiffs filed the Title Suit No. 287 of 2014 for
easementary and other consequential reliefs.
(iii) The defendant/petitioner joined the proceedings in
the suit opposing their contention by filing his written statement.
The issues were framed and the matter proceeded for recording
of evidence of the plaintiffs. While the evidence of the plaintiffs
was being recorded, the defendant no. 1/petitioner moved an
application dated 22.12.2017 before the learned trial court for
appointment of Survey Knowing Pleader Commissioner for
examination of the plots of the plaintiffs as well as one
Janaknandani Devi contiguous to the plot of plaintiffs in the
light of deposition of plaintiff/respondent no. 1 denying the
suggestion that the land purchased in the name of
plaintiff/respondent no. 2 was vacant except a house in the
northern portion and also with regard to denial about a
residential house existing on the land of Janaknandani Devi and
its southern portion being vacant land. The defendant/petitioner
Patna High Court C.Misc. No.1155 of 2018 dt. 23-01-2024
claimed that on the land of plaintiff/respondent no. 2, there was
only garage on the northern side and rest of the land was vacant
and a residential house was existed on the land of Janaknandani
on the northern side and its southern portion was vacant.
(iv) The plaintiffs filed their rejoinder to the application
filed by the defendant no./petitioner submitting that the
plaintiff/respondent no. 2 and Janaknandani are own sister and
both of them purchased 05 katha land each and by their mutual
arrangement and consent, the plaintiff/respondent no. 2
constructed her house on whole 10 katha of land from West to
North and also constructed a clinic and the plaintiffs are in
possession of all of 10 katha land. The plaintiffs/respondents
further submitted that the total 10 katha of land was purchased
by the plaintiff/respondent no.2 and her sister Janaknandani
Devi by sale deeds in 1972 and the defendant no.1/petitioner has
no concern with the land of Janaknandani Devi. The
defendant/petitioner cannot demand any report on the lands of
Janaknandani Devi or plaintiff/respondent no. 2 as the same are
not in dispute and Janaknandani Devi is not a party to the suit.
(v) The learned trial court after considering the
submission of both sides, rejected the petition dated 22.12.2017
filed on behalf the petitioner/defendant no.1.
Patna High Court C.Misc. No.1155 of 2018 dt. 23-01-2024
03. Learned counsel for the petitioner submitted that the
order of the learned trial court suffers from material irregularity
as the learned trial court has not considered whether it was not
necessary in the interest of justice to get physical verification
report with regard to dispute raised in the case. It has also not
considered whether the physical verification as requested by the
defendant/petitioner is necessary for fair adjudication and to
decide the real controversy in the case. Learned counsel further
submitted that the learned trial court went on the premises that
the report being sought on the land is not the suit property but it
missed the point that the plaintiffs themselves admitted that
entire 10 katha land came into possession of the
plaintiff/respondent no. 2 and the petition of the
defendant/petitioner was for inspection and report with regard to
aforesaid land and the passage attached to the said land. Thus,
the learned trial court erred while holding that the petition filed
by the defendant/petitioner is not related to the suit land and it
would not be helpful to elucidate any matter in dispute between
the parties. The learned trial court also did not take into
consideration the fact that the plaintiff/respondent no.1 has
given false and contradictory statement in his evidence with
regard to construction of house and free space. Learned counsel
Patna High Court C.Misc. No.1155 of 2018 dt. 23-01-2024
further submitted that a false statement can be verified only by
spot verification. Moreover, it is case filed for easementary
rights and it would be necessary to take into consideration the
existing condition of the plots in possession of the plaintiffs.
04. Learned counsel appearing on behalf of the
respondents-1st party vehemently opposed the submission made
on behalf of petitioner. Learned counsel for the respondents-1st
party submitted that obviously, the prayer for appointment of
Survey Knowing Pleader Commissioner is not for suit land. The
evidence of plaintiffs is being recorded in the suit and this is not
the stage to obtain the report of Survey Knowing Pleader
Commissioner. If the learned trial court may harbour any doubt,
it can ask for report of Survey Knowing Pleader Commissioner
after the evidence(s) of both sides are closed. The learned
counsel reiterated the submission made in the rejoinder by the
plaintiffs/respondents to the application filed by the defendant
no.1/petitioner. Learned counsel further submitted that
defendant has not taken any defence in his written statement
about there being no house near the disputed land. Moreover,
calling for physical feature of measurement report of any other
land apart from suit land is simply not permissible as the same is
not the subject matter of dispute. Since, it is a case of
Patna High Court C.Misc. No.1155 of 2018 dt. 23-01-2024
easementary right over the right of way between the parties,
except for the suit land other land cannot be the subject matter
of the suit.
05. I have given my thoughtful consideration to the facts
of the case and the submission made on behalf of the parties.
Without going into details of the case, it is pertinent to note here
that the matter is at the stage of evidence of
plaintiffs/respondents. When the evidence of
plaintiffs/respondents is being recorded, the defendant/petitioner
cannot make prayer midway that a Survey Knowing Pleader
Commissioner be appointed. The said prayer could be
considered only after the evidence of the plaintiffs has been
closed or if the court requires, after recording of the evidence(s)
of both the parties. So, the claim of the petitioner/defendant no.
1 is premature. Hence, without going into the merits of the case,
the petition is dismissed as being premature.
(Arun Kumar Jha, J)
Ashish/-
AFR/NAFR NAFR
CAV DATE 04-01-2024
Uploading Date 23-01-2024
Transmission Date N/A
