Patna High Court
Divya Kumari vs Mr. Jugeshwar Nath Srivastava on 11 June, 2024
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.572 of 2023
======================================================
1. Divya Kumari, Wife of Sri Brajesh Kumar, daughter of Late Sudha Devi and
Late Devendra Prasad
2. (Ms). Dipti Kumari, daughter of Late Sudha Devi and Late Devendra Prasad
3. Sushant Kumar, Son of Late Devendra Prasad,
All are residents of Mohalla- Bhim Shani Tola, P.O. - Malsalami, P.S. -
Malsalami, District - Patna (Bihar). At present resident of 3 SFS, B-1/5,
Bhoot Nath Road, Bahadurpur Housing Colony P.S. - Agam Kuan, District -
Patna Through constituent Power of Attorney-Holder Sri Jang Bahadur
Singh, Son of Late Ramyash Singh Resident of "Sai Kripa", Ved Nagar,
Rukunpura, B.V. College, P.S. - Rupaspur, Bailey Road, Danapur, District -
Patna - 14.
... ... Petitioner/s
Versus
Mr. Jugeshwar Nath Srivastava, Son of Late Onkar Nath Srivastava, resident
of Mohalla - Naya Tola, Saguna More Near Raghunath Petrol Pump, P.S.-
Danapur, Bailey Road, District - Patna (Bihar).
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. J.S. Arora, Sr. Advocate
Mr.Shashi Nath Jha, Advocate
For the Respondent/s : Mr. Amit Shrivastava, Sr. Advocate
Mr.Girish Pandey
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 11-06-2024
The present petition has been filed under Article
227 of the Constitution of India for setting aside the part of the
order dated 17.01.2023 passed by the learned Additional District
Judge-VI, Danapur, Patna in Title Appeal No. 79/2019 (Divya
Kumari & Ors. vs. Jugeshwar Nath Srivastava) whereby and
whereunder the application of the present petitioners dated
07.04.2022
filed for scientific measurement of the land in
question has been dismissed. The petitioners have further prayed
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
for direction to the learned first appellate court to appoint a
Survey Knowing Advocate Commissioner to conduct and hold
scientific measurement of the disputed plot of land by allowing
the petitioners' petition dated 07.04.2022 filed under Order 26
Rule 10 A of the Code of Civil Procedure (hereinafter referred
to as 'the Code') while holding that the learned first appellate
court failed to exercise the jurisdiction vested in it.
2. The conspectus of the case of the parties is that in
the year 2011, Title Suit No. 112/2011 (Smt. Sudha Devi & Ors.
vs. Jugeshwar Nath Srivastava) was filed by the plaintiffs in the
court of learned Sub Judge, Danapur, Patna seeking, inter alia,
declaration of title and a decree for removal of encroachment
and also for removal of construction of house/shop made by the
defendant over the suit land. In Schedule-1 of the plaint, the
plaintiffs have described the encroached portion measuring 1.5
Katha of land by the defendant. During the pendency of the suit,
the plaintiffs through amendment described the illegal
construction made by the defendant in Schedule II which is part
and parcel of the Schedule-I land of the plain. The defendant
appeared and filed his written statement contesting the suit.
During pendency of the suit, original plaintiff nos. 1 & 2 (Sudha
Devi and Devendra Prasad) died and they were substituted by
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
their two daughters namely, Divya Kumari and Dipti Kumari.
Subsequently, vide power of attorney dated 28.12.2012, all the
three heirs of the original plaintiff nos. 1 & 2 including plaintiff
no.3 namely, Sushant Kumar granted a fresh power of attorney
in favour of Jang Bahadur Singh, who has since then been
pursuing the case in the title suit as well as in the title appeal.
There appears to be a chunk of land measuring 33 Katha 3 Dhur
under Khata No. 144, situated at Mauza-Saguna, Danapur,
Patna, out of which, plaintiffs/appellants/petitioners have claim
over 8 Katha 3 Dhur, whereas defendant has claim over 25
Katha in the same Plot No. 363 (part). The plaintiffs claimed
that defendant has encroached upon 1.5 Katha of land and for
removal and restoration of the same, the suit has been filed by
the plaintiffs.
3. Further case of the plaintiffs is that on their land of
8 Katha 3 Dhur, the plaintiffs made pilling work of about 8 feet
deep at a distance of 7 feet center to center over their land in the
year 2003 itself, but the plaintiffs did not erect any boundary
wall. However, the plaintiffs claimed that defendant. who owns
a big area of same plot adjacent west to the land of the plaintiffs,
forcibly made a boundary wall on 23.01.2011 over their land by
encroaching about 1 Katha 10 Dhur and, in this way, the
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
defendant amalgamated the encroached land with his own land.
The petitioners further claimed that during pendency of the suit
at the instance of the plaintiffs (wrongly submitted as it would
become clear later on), one Pleader Commissioner was
appointed to ascertain the area of encroached land, but the
Pleader Commissioner did not measure the land scientifically
and came in collusion with defendant and submitted a faulty and
illegal report. Subsequently, at the instance of the plaintiffs and
pursuant to the direction of the learned trial court, the concerned
Circle Officer appointed a Government Anchal Amin in order to
find out the encroached area made by the defendant. The
plaintiffs further claimed that subsequently on 31.08.2018, the
learned trial court directed the Circle Officer, Danapur to get the
measurement of land at the cost of the plaintiffs and the
Government Amin visited the spot for measurement, but the
defendant and his private Amin restrained the Government
Amin from measuring the total disputed lands i.e. 33 Katha and
3 Dhur fully and scientifically and the Government Amin
submitted a report on 15.09.2018. The learned trial court having
considered the matter and vide judgment and decree dated
03.08.2019 dismissed the suit of the plaintiffs. Aggrieved by the
decision of the learned trial court, the plaintiffs filed Title
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
Appeal No. 79/2019 which is pending adjudication before the
learned court of Additional District Judge-VI, Danapur, Patna.
During pendency of title appeal, the plaintiffs/appellants filed a
petition on 07.04.2022 under Order 26 Rule 10A of the Code for
scientific measurement of the entire plot in question so that the
total area of Plot No. 363 could be measured scientifically. A
rejoinder was filed on 20.04.2022 by the defendant/respondent.
The application dated 07.04.2022 was dismissed by the learned
first appellate court vide order dated 17.01.2023. The said order
has been assailed before this Court in the present civil
miscellaneous petition.
4. Mr. J.S. Arora, learned senior counsel appearing on
behalf of the petitioners submitted that while passing the
impugned order, the learned first appellate court failed to
exercise the jurisdiction vested in it and dismissed the petition
dated 07.04.2022 filed under Order 26 Rule 10 A of the Code on
flimsy and unsustainable grounds. The grounds mentioned by
the learned first appellate court while rejecting the prayer for
scientific measurement of suit land are all unreasonable,
arbitrary and against the well settled legal principles. There was
no justification for the learned first appellate court to hold that
by allowing the application dated 07.04.2022, the already settled
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
issues regarding the measurement would be reopened/revived.
The learned senior counsel further submitted that the learned
first appellate court ought to have held that the evidences
collected during trial of the suit are/were not sufficient to decide
the question of encroachment made by the
defendant/respondent. Since the whole case and claim of the
petitioners is based on the encroachment made by the
respondent in respect to 1 Katha 10 Dhur of lands of the
plaintiffs/appellants, in any case, scientific measurement is
essential even at the appellate stage. The learned senior counsel
further submitted that the learned first appellate court failed to
protect the right, title, interest and possession of the
plaintiffs/petitioners and in the interest of justice and equity, it is
essential to get the measurement of entire area of land i.e. 33
Katha 3 Dhur relating to Plot No. 363 by a competent Survey
Knowing Advocate Commissioner. The learned senior counsel
further submitted that much stress has been put by defendant in
the written statement that Babban Singh, their vendor, who was
the purchaser of 8 Katha 3 Dhur of land and came into its
possession since 1973, never raised any dispute regarding
defendant having possession of any excess land or having
encroached upon any portion of the land of the plaintiffs. But
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
the whole issue arose after the plaintiffs purchased the land and
the defendant constructed a boundary wall in the year 2011. The
defendant has also stated in paragraph 30 of his written
statement that the defendant was ready for measurement and
demarcation of 25 Katha of Plot No. 363 by any competent
authority or by appointing Survey Knowing Pleader
Commissioner and when the plaintiffs/appellants raised this
demand before the learned first appellate court, it has been
vehemently opposed by the defendant which is not proper in
view of the acceptance for appointment of Survey Knowing
Pleader Commissioner by defendant in his written statement.
The learned senior counsel further submitted that from bare
perusal of the earlier report of Survey Knowing Pleader
Commissioner, it is apparent the report was faulty as no second
fixed point was ascertained. However, area of land of plaintiffs
was found to be 7 Katha 6 Dhurs and 9 Dhurki. The learned
senior counsel further submitted that even from perusal of the
report of the Government Amin, it transpires that the said report
was under dictates of the defendant as the defendant restricted
the measurement only to the area on which construction was
made and the adjacent land only. The defendant also objected to
the fixed point being ascertained by the Amin. Even in this
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
report the area of the land of the plaintiffs was found to be 7
Katha 1 Dhur, so the land of the plaintiffs was found to be less
than their purchased land. The learned senior counsel further
submitted that even the writ issued by the learned Sub Judge for
scientific measurement was modified by the Circle Officer. The
learned senior counsel further submitted that since the
proceeding before the learned first appellate court is the
continuation of the suit, the report of earlier Survey Knowing
Advocate Commissioner or Anchal Amin submitted during the
course of trial of the suit would not operate as res judicata in the
present appellate jurisdiction. Moreover any interlocutory order,
passed during course of trial, does not operate as res judicata in
a subsequent stage of the suit and hence, there is no question of
attainment of finality with respect to earlier reports of the
Pleader Commissioner and the Anchal Amin. At the same time,
principle of estoppel would not apply, if the same
questions/issues are raised again in a court of higher jurisdiction
arising under the same suit/proceeding.
5. Mr. Arora referred to the decision of this Court
in the case of Dr. Vijay Kumar Jain vs. Smt. Shakuntala Devi,
reported in 2005 (1) PLJR 11 wherein it has been held by the
learned Single Judge that even at the stage of appeal, the
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
appellate court could exercise its power under Order 41 Rule 27
(1) (b) read with Order 26 Rule 9 of the Code to appoint Survey
Knowing Pleader Commissioner to decide the issue of
encroachment by taking necessary measurement of the plot in
question.
6. Mr. Arora further referred to a decision of Bombay
High court rendered in the case of Yasin Gulab Shikalkar vs.
Maruti Nagnath Aware and Ors. in Writ Petition No.
7278/2022 disposed of on 25.01.2023 wherein under somewhat
similar circumstances, the Bombay High Court allowed the writ
and set aside the order of learned District Judge by which the
petitioner's application for appointment of Court Commissioner
for measurement of lands during the pendency of the appeal was
rejected. The Bombay High Court held that in cases if the Court
Commissioner fails to present correct picture prevailing at the
site, the trial court itself was empowered to appoint another
Court Commissioner and there was no question of applicability
of the principle of res judicata. If the earlier measurement
conducted was defective, the appellate court should have
allowed the application for appointment of Survey Knowing
Advocate Commissioner afresh.
7. Mr. Arora further pointed out that the basic fault
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
with the reports of Survey Knowing Advocate Commissioners
and Anchal Amin is that they failed to measure the total area of
the suit plot and thereafter the area under occupation of
plaintiffs and defendant were to be measured, but the same was
not done.
8. Mr. Arora further referred to the decision of the
Hon'ble Supreme Court rendered in the case of Smt. Sukhrani
(Dead) by LRs. And Ors. vs. Hari Shanker and Ors. reported in
AIR 1979 SC 1436 wherein it has been held that a decision
given at an earlier stage of a suit will bind the parties at later
stages of the same suit. It has been further held that it is equally
well settled that because a matter has been decided at an earlier
stage by an interlocutory order and no appeal has been taken
therefrom or no appeal did lie, a higher Court is not precluded
from considering the matter again at a later stage of the same
litigation.
9. Mr. Arora also referred to the decision of this Court
rendered in the case of Bal Manohar Jalan vs. Dr. Braj
Nandan Sahay & Ors., reported in 2012 (3) PLJR 221 on the
proposition that if the court is not in a position to ascertain about
encroachment of the disputed property, in order to verify the
identity of the disputed land, it would be desirable to get the
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
report of Pleader Commissioner. The Court further held that if
the Court refused to decide the issue of appointment of Pleader
Commissioner on the grounds that earlier petition which was
rejected by the court was not challenged before the higher court
and if the court has not decided the case on merits, rejection
order was not sustainable and allowed the writ petition.
10. Mr. Arora reiterated that when there is dispute of
identity of land and there is allegation of encroachment, the best
evidence is to get the report by appointing Survey Knowing
Pleader Commissioner. Thus, Mr. Arora submitted that the
impugned order is illegal and without proper jurisdiction by the
learned first appellate court and the same be set aside and the
application of the petitioners for appointment of Survey
Knowing Pleader Commissioner be allowed.
11. Per contra, Mr. Amit Shrivastava, learned senior
counsel appearing on behalf of the defendant/ respondent
vehemently opposed the submission made on behalf of the
petitioners. The learned senior counsel submitted that the
defendant purchased 25 Katha of land in the year 1972 and
thereafter came into its possession. The vendors of the original
plaintiffs Baban Singh, purchased 8 Katha and 3 Dhur of land.
The learned senior counsel further submitted that a detailed
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
discussion about purchase of different plots of land has been
made in another case between the parties which was disposed of
by this Court vide judgment dated 05.01.2024 passed in Civil
Misc. No.578 of 2023. The plaintiffs have filed the present case
with wrong submission as the petitioners of Civil Misc. No. 578
of 2023 are the subsequent purchasers from the original
plaintiffs Sudha Devi and Sushant Kumar and between them
they purchased only 7 Katha 13 Dhur of land by different sale
deeds. If the land purchased by vendees of plaintiff nos. 1 and 3
is deducted from the land purchased by the original vendor
Babban Singh, only 10 Dhur of land would remain. So, the
claim of the original plaintiffs about the encroachment of 1.5
Katha of land is completely false and concocted and so is the
claim of vendees who have been contesting before the learned
first appellate court.
12. Mr. Shrivastava further submitted that the
petitioners have not approached this Court with clean hands and
even made wrong submission in their petition filed before this
Court. The original plaintiff no. 3 (petitioner no.3 herein) and
substituted plaintiff nos. 1 and 2 have suppressed the material
facts of execution of five registered deeds of sale in favour of
general power of attorney holder, namely Jang Bahadur Singh
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
and his family members, but the original plaintiffs or substituted
plaintiffs did not bring this fact to the notice of either the trial
court or to the first appellate court. Even the general power of
attorney holder did not bring this fact to the notice of learned
trial court or learned first appellate court nor any averment in
this regard has been made in the instant civil miscellaneous
petition. The original plaintiffs did not even take the leave of the
learned trial court as required under Section 52 of the Transfer
of Property Act before the sale of suit properties.
13. Mr. Shrivastava further submitted that law is well
settled and the Hon'ble Supreme Court on a number of
occasions has held that any person coming to a court of law
must come with clean hands and any suppression of material
facts by such a party completely disentitles the party from grant
of any relief. In this regard, the learned senior counsel relied on
the decision of the Hon'ble Supreme Court in the case of
Yashoda Vs. Sukhwinder Singh and Ors. (Civil Appeal No.
8247 of 2009).
14. Mr. Shrivastava further submitted that suppression
of material facts in a court of law amounts to fraud and for this
reason, the case of the petitioners is liable to be thrown out of
the Court and could not be entertained.
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
15. Mr. Srivastava further submitted that the
petitioners have again made a false statement in paragraph 10 of
the instant civil miscellaneous petition that the Survey Knowing
Pleader Commissioner was appointed at the instance of the
plaintiffs/petitioners, whereas Survey Knowing Pleader
Commissioner was appointed at the instance of the
defendant/respondent. The petitioners must be hauled up for
making false statement on oath.
16. Mr. Shrivastava further pointed out that the matter
is being contested by the general power of attorney holder and
when the entire property has been alienated by the plaintiffs, the
general power of attorney holder ceases to have any rights. On
the date i.e. 18.12.2012, when the general power of attorney was
executed, the entire suit property was sold and, as such, the
execution of general power of attorney was void ab initio and
nullity in the eyes of law.
17. Mr. Shrivastava further submitted that there is no
whisper about any encroachment in the sale deeds executed by
Babban Singh in favour of the original plaintiffs or in the sale
deeds of the subsequent purchasers.
18. Mr. Shrivastava further submitted that the
petitioners have brought a completely bogus case before this
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
Court in the instant civil miscellaneous petition. The
Government Amin was appointed and submitted its report which
was marked as Exhibit 10 before the learned trial court and the
said exhibit was marked at the instance of the plaintiffs without
any objection. If the said document was exhibited without any
objection at the time of trial, the plaintiffs could not be allowed
to raise any objection at the appellate stage to the said report.
Similarly, the objection raised by the plaintiffs to the report of
Survey Knowing Pleader Commissioner (Exhibit B) was
rejected by the learned trial court and the same was not
challenged, hence, the said report attained finality. Therefore,
the petitioners are precluded in law in challenging either the
Pleader Commissioner's report or the report of the Anchal
Amin. The principles of res judicata would also be applicable.
Further, as the original plaintiffs have alienated the entire suit
properties, that too, without authority of the learned trial court,
they are precluded in maintaining the petition dated 07.04.2022.
19. Mr. Shrivastava further submitted that in both the
reports, even the land of the defendant was found to be less than
25 Katha. The repeated attempts by the plaintiffs/petitioners is
nothing but a deliberate attempt to linger the proceeding and
prolong the hearing and disposal of Title Appeal No. 79/2019.
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
The petitioners have suppressed even different orders passed by
the learned trial court like order dated 27.01.2015 of learned
Sub judge-III, Danapur in Title Suit No. 112/2011 whereby the
petition of the petitioners filed under Order 26 Rule 10 (a) and
Section 151 of the Code was rejected and also the order dated
17.07.2018 passed by the learned Sub Judge II, Danapur, Patna
in Title Suit No. 112 of 2011. Both these orders challenged the
reports of Survey Knowing Pleader Commissioner and were
rejected by the learned trial court. However, vide order dated
17.07.2018, in the interest of justice, appointment of Amin was
ordered. In this manner, application for further appointment of
Survey Knowing Pleader Commissioner was rejected thrice and
if no objection was taken earlier and orders of the learned trial
court were not challenged, the petitioners are not permitted to
raise the issue again in appeal.
20. Mr. Srivastava further submitted that it was the
defendant/respondent, who filed a petition on 01.12.2011 in the
learned trial court in Title Suit No. 112/2011 to appoint a Survey
Knowing Pleader Commissioner to measure and demarcate the
land of the defendant. After filing of the aforesaid petition by
the defendant, the petitioners filed a petition on 09.05.2012
wherein they formulated seven points for inspection and report
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
by Survey Knowing Advocate Commissioner. However, the
petitioners have suppressed the material fact that the learned
trial court vide order dated 22.01.2013 allowed the petition of
the respondent dated 01.12.2011 and ordered for appointment of
Survey Knowing Advocate Commissioner. In the same order,
the learned trial court rejected six, out of seven points raised by
the petitioners. Admittedly, the petitioners never challenged the
said rejection before any superior Court. Another application
filed on 06.09.2014 under Order 26 Rule 10 (A) of the Code
before the learned trial court for appointment of Survey
Knowing Advocate Commissioner was rejected by a reasoned
order dated 27.01.2015. Again on 06.02.2018, the petitioners
filed a petition for appointment of Survey Knowing Advocate
Commissioner and for rejecting the earlier report. Again the
learned trial court, by a reasoned order dated 17.07.2018,
rejected the said petition filed on 06.02.2018. In the same order,
the learned trial court, in the interest of justice, directed for
appointment of a competent Government Amin. With sole and
oblique motive of gaining undue advantage over the defendant,
the petitioners have deliberately suppressed the aforesaid facts
and withheld the aforementioned relevant and material
documents in the instant civil miscellaneous petition, and for
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
this reason, the instant civil miscellaneous petition is fit to be
dismissed with exemplary cost. Since the petitioners have never
challenged the aforesaid three orders dated 22.01.2013,
27.01.2015 and 17.07.2018, all the three orders have attained
finality and cannot be agitated in an appeal. Moreover, the
voluntary conduct of the petitioners in not challenging the said
three orders is squarely hit by principles of waiver and voluntary
relinquishment of their statutory rights as well as res judicata.
21. Mr. Shrivastava placed reliance on the decision of
Hon'ble Supreme Court in the case of U.P. State Road
Transport Corporation vs. State of U.P. & Ors. reported in AIR
2005 SC 446 on the point of principles of res judicata. The
Hon'ble Supreme Court in paragraph 11 has held that the
principle of res judicata is based on the need of giving a finality
to judicial decisions. The principle which prevents the same
case being twice litigated is of general application and is not
limited by the specific words of Section 11 of Code of Civil
Procedure in this respect. Res judicata applies also as between
two stages in the same litigation to this extent that a Court,
whether the trial Court or a higher Court having at an earlier
stage decided a matter in one way will not allow the parties to
re-agitate the matter again at a subsequent stage of the same
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
proceedings.
22. Mr. Shrivastava further submitted that the reliance
placed by Mr. Arora on the cases of Dr. Vijay Kumar Jain
(supra) and Yasin Gulab Shikalkar (supra) have no relevance
for the purpose of the present case. Unlike Bombay High Court
judgment, there has been no objection to the report of Amin in
the present case. Moreover, both Survey Knowing Pleader
Commissioner as well as Government Amin have been
appointed in the case and their reports have been marked as
exhibits.
23. Mr. Shrivastava further placed reliance on the
decision of the Hon'ble Supreme Court in the case of Dalip
Singh vs. State of Uttar Pradesh and Ors, reported in (2010) 2
SCC 114 on the proposition that a litigant, who attempts to
pollute the stream of justice or who touches the pure fountain of
justice with tainted hands, is not entitled to any relief, interim or
final. On the same proposition, Mr. Shrivastava further placed
reliance on the decision of the Hon'ble Supreme Court in the
case of Sarvepalli Radha Krishnan University and another Vs.
Union of India and Ors. reported in (2019) 14 SCC 761.
24. Mr. Shrivastava further placed reliance on the
decision of Division Bench of this Court in the case of Bashid
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
Ahmad Vs. State of Bihar and Ors. in LPA No. 359 of 2024
disposed of on 15.04.2024 on the point of the Court frowning
upon on the blatant attempt to mislead the Court.
25. Mr. Shrivastava further placed reliance on the
decision rendered in Gopal Das and another vs. Sri Thakurji
and Ors. reported in AIR 1943 PC 83 and reiterated in the case
of Lachhmi Narain Singh and Ors. vs. Sarjug Singh and Ors.
reported in AIR 2021 SC 3873 wherein it has been held that
plea regarding mode of proof cannot be permitted to be taken at
the appellate stage for the first time, if not raised before the trial
court at the appropriate stage. The reliance has been placed with
regard to the report of the Government Amin being admitted at
the instance of the plaintiffs without any objection. Mr.
Shrivastava further submitted that allowing such objection at the
appellate stage is inconsistent with the rule of fair play.
26. Mr. Shrivastava further placed reliance on the
decision of this Court rendered in the case of Sarwan Kumar
vs. Amrendra Kumar and Ors. in Second Appeal No. 34 of
2015 on the point of Amin report being admitted by the
plaintiffs and reliance placed upon it by the court.
27. Mr. Shrivastava further placed reliance on the
decision of the Hon'ble Supreme Court in the case of Jai Singh
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
and Ors. vs. Municipal Corporation of Delhi and another
reported in (2010) 9 SCC 385 on the point of jurisdiction of this
Court under Article 227. The Hon'ble Supreme Court in
paragraph 15 has held that the High Court under Article 227 of
the Constitution of India has the jurisdiction to ensure that all
subordinate courts as well as statutory or quasi-judicial
tribunals, exercise the powers vested in them, within the bounds
of their authority. The High Court has the power and the
jurisdiction to ensure that the Courts act in accordance with the
well-established principles of law. The High Court is vested
with the powers of superintendency and/or judicial revision,
even in matters where no revision or appeal lies to the High
Court. The jurisdiction under this article is, in some ways, wider
than the power and jurisdiction under Article 226 of the
Constitution of India. It is, however, beneficial to remember the
well-known adage that greater the power, greater the care and
caution in exercise thereof. The High Court is, therefore,
expected to exercise such wide powers with great care, caution
and circumspection, The exercise of jurisdiction must be within
the well-recognized constraints. It cannot be exercised like a
"bull in a china shop", to correct all errors of judgment of a
court, or tribunal, acting within the limits of its jurisdiction. This
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
correctional jurisdiction can be exercised in cases where orders
have been passed in grave dereliction of duty or in flagrant
abuse of fundamental principles of law or justice. It has further
been held in paragraph 42 that the High Court has the power to
reach injustice whenever, wherever found within the scope and
ambit of its powers under Article 227 of the Constitution of
India.
28. Mr. Shrivastava further placed reliance on the
decision of this Court in the case of Smt. Shamshad Khatun vs.
The State of Bihar & Ors. reported in 2010 (1) PLJR 929
regarding principle of waiver and estoppel making the appellant
not entitled for relief sought in the Letters Patent Appeal.
29. Mr. Shrivastava further placed reliance on the
decision of this Court in the case of Umesh Pd. Thakur & Ors.
vs. Nand Kumar Singh & Ors. reported in 2016 (3) PLJR 447
on the point of objection not being taken earlier and subsequent
objection not being sustainable.
30. Mr. Srivastava also placed reliance on the
decision of Madras High Court in the case of Pappayee Ammal
vs Subbulakshmi Ammal and another reported in AIR 1983
Madras 344 on the point that where a Commissioner was
appointed by the trial Court to make local inspection of the suit
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
property and no objection to his report was raised at the stage of
trial before the trial Court, the appointment of another
Commissioner by the appellate Court during the pendency of
the appeal for the very same purpose for which the
Commissioner had been appointed by the trial Court would be
invalid as it is neither in the interest of justice nor is it
recognised by the provisions of Order 41, Rule 27 or under
Order 26, Rule 9 read with Section 107.
31. On the strength of aforesaid authorities, Mr.
Shrivastava submitted that the order of the learned first
appellate court is well reasoned and does not warrant any
interference both on facts and in law.
32. By way of reply, Mr. Arora, learned senior
counsel appearing on behalf of the petitioners submitted that
endeavour of the Court should be towards the adjudication of
real controversy between the parties. The present case being a
case for deciding encroachment and if earlier reports are
insufficient, there is no harm in allowing the application for
appointment of Survey Knowing Pleader Commissioner for
scientific measurement of the plots. It is in the interest of justice
and equity that measurement of entire area of Plot No.363 apart
from separate area in possession of the parties to be allowed as
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
the same is necessary for completely adjudicating the matter.
Mr. Arora reiterated that not challenging the orders passed by
the learned trial court or non-challenge to the reports of Survey
Knowing Pleader Commissioner or Government Amin could not
be treated as res judicata in the present appellate jurisdiction
since these orders were interlocutory orders and passed during
the course of trial. Therefore, the petitioners are at liberty to
raise the issue before the appellate court. Mr. Arora further
submitted that both the reports are meaningless since neither
Survey Knowing Pleader Commissioner nor the Government
Amin reported about total area of Plot No. 363 and thereafter
about respective possession of the parties. Further, in absence of
fixed points, how can the surveyors reported about non-
encroachment by the defendant/respondent. The surveyors never
gave a report about actual physical configuration of Plot No.
363 and 25 Katha of land of the defendant. Since Plot No. 363
was never demarcated and court felt that report was insufficient,
it was incumbent upon the learned first appellate court to call
for another report. Mr. Arora further reiterated that unless the
whole Plot No. 364 measured, it was not possible to demarcate
the plots of the parties. Further, under Section 105 of the Code,
the petitioners have taken all the grounds in their memo of
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
appeal. The impugned order is without consideration of the
merits of the case of the petitioners.
33. I have given my thoughtful consideration to the
rival submission as well as facts of the case. Admittedly, the
orders dated 22.01.2013, 27.01.2015 and 17.07.2018 have not
been challenged by the petitioners. Thus, these orders have
attained finality.
34. The Hon'ble Supreme Court in the case of R.V.E
Venkatachala Gounder vs. Arulmigu Viswesaraswami and V.P.
Temple reported in (2003) 8 SCC 752, while dealing with the
aspect of disallowing objection as to mode of proof at appellate
stage as a rule of fair play to avoid prejudice to the other side,
has held in paragraph 20 as under :
"20.........In the latter case, the objection should be
taken when the evidence is tendered and once the
document has been admitted in evidence and marked
as an exhibit, the objection that it should not have
been admitted in evidence or that the mode adopted
for proving the document is irregular cannot be
allowed to be raised at any stage subsequent to the
marking of the document as an exhibit. The latter
proposition is a rule of fair play. The crucial test is
whether an objection, if taken at the appropriate
point of time, would have enabled the party
tendering the evidence to cure the defect and resort
to such mode of proof as would be regular. The
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
omission to object becomes fatal because by his
failure the party entitled to object allows the party
tendering the evidence to act on an assumption that
the opposite party is not serious about the mode of
proof. On the other hand, a prompt objection does
not prejudice the party tendering the evidence, for
two reasons: firstly, it enables the court to apply its
mind and pronounce its decision on the question of
admissibility then and there; and secondly, in the
event of finding of the court on the mode of proof
sought to be adopted going against the party
tendering the evidence, the opportunity of seeking
indulgence of the court for permitting a regular
mode or method of proof and thereby removing the
objection raised by the opposite party, is available
to the party leading the evidence. Such practice and
procedure is fair to both the parties. Out of the two
types of objections, referred to hereinabove, in the
latter case, failure to raise a prompt and timely
objection amounts to waiver of the necessity for
insisting on formal proof of a document, the
document itself which is sought to be proved being
admissible in evidence...."
35. So, the petitioners could not now again take the
same plea before the appellate court in same proceeding for
appointment of Survey Knowing Pleader Commissioner for
scientific measurement of the disputed plots.
36. Further, reliance could be placed on the decision
of the Privy Council in the case of Gopal Das (supra) wherein
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
it has been held that objection as to the mode of proof must be
taken when the document is tendered and before it is marked as
an exhibit, it cannot be taken in appeal.
37. Only option available as of now for the petitioners
is that they could raise the issue before the appellate court and
as it appears from the petition of the petitioners that in memo of
appeal, they have raised this issue and assailed the reports
before the learned first appellate court.
38. The Hon'ble Supreme Court in the case of
Kusheshwar Prasad Singh v. State of Bihar reported in (2007)
11 SCC 447 has held as under :
"13. The appellant is also right in contending
before this Court that the power under Section
32-B of the Act to initiate fresh proceedings
could not have been exercised. Admittedly,
Section 32-B came on the statute book by Bihar
Act 55 of 1982. The case of the appellant was
over much prior to the amendment of the Act
and insertion of Section 32-B. The appellant,
therefore, is right in contending that the
authorities cannot be allowed to take undue
advantage of their own default in failure to act
in accordance with law and initiate fresh
proceedings.
14. In this connection, our attention has been
invited by the learned counsel for the appellant
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
to a decision of this Court in Mrutunjay Pani v.
Narmada Bala Sasmal [AIR 1961 SC 1353]
wherein it was held by this Court that where an
obligation is cast on a party and he commits a
breach of such obligation, he cannot be
permitted to take advantage of such situation.
This is based on the Latin maxim commodum ex
injuria sua nemo habere debet (no party can
take undue advantage of his own wrong)".
39. If the petitioners did not challenge the aforesaid
three orders dated 22.01.2013, 27.01.2015 and 17.07.2018, they
cannot be allowed to re-agitate the matter at the appellate stage
as the same would be akin to allowing them to take advantage of
their own wrong. On this ground, I am of the view that the
petitioners were not entitled to move before the learned first
appellate court for making a prayer for appointment of Survey
Knowing Pleader Commissioner in the light of rejection of the
same prayer thrice by the learned trial court, which have not
been challenged.
40. Moreover, there has been appointment of Survey
Knowing Pleader Commissioner and Government Amin for the
purpose of demarcation of the suit property and the area in
possession of the parties. Furthermore, the petitioners have
failed to point out that the learned trial court expressed any
opinion that the evidence before it was insufficient for deciding
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
the issue involved in the present matter. If no such inability has
been shown by the learned trial court and the objections raised
against the reports have been disposed of on merits by reasoned
orders, not once or twice but thrice, the said issue cannot be
allowed to remain alive for all time to come and cannot be
allowed to be agitated at the instance of the petitioners till their
satisfaction. In any case, it is always open to the first appellate
court to appraise the evidence recorded during the trial to arrive
at a finding whether the evidence is sufficient or not for
deciding the issues and it can always take a call for appointment
of a Survey Knowing Pleader Commissioner in accordance with
law, if it feels so.
41. In the light of discussion made, the reliance placed
by the learned senior counsel appearing on behalf of the
petitioners is of no help to the case of the petitioners since the
facts of the present case are quite dissimilar to the facts of the
cases cited by the learned senior counsel.
42. Therefore, I do not think the learned first appellate
court committed any wrong or illegality and thus hold that there
is no infirmity in the impugned order dated 17.01.2023 passed
by the learned Additional District Judge-VI, Danapur, Patna in
Title Appeal No. 79 of 2019 and hence, the same is affirmed.
Patna High Court C.Misc. No.572 of 2023 dt. 11-06-2024
43. The present petition fails and, accordingly, the
same is dismissed.
44. However, it is made clear that this Court has not
expressed any opinion on the merits of the case and whatever
has been observed here-in-before is only for the purpose of
disposal of the present petition and hence, the learned first
appellate court is directed to proceed with the matter
uninfluenced by any observation made by this Court and it is
further directed to dispose of the appeal at the earliest
considering the earlier judgment of this Court passed in Civil
Misc. No.578 of 2023.
45. So far as the allegation of concealment of facts or
playing fraud upon the court are concerned, at this stage, this
Court is not inclined to enter into the matter and the respondents
are at liberty to take up this issue before the court concerned.
(Arun Kumar Jha, J)
V.K.Pandey/-
AFR/NAFR AFR
CAV DATE 07.05.2024
Uploading Date 11.06.2024
Transmission Date N.A
