Patna High Court
Anil Kumar Singh And Ors vs Anoj Kumar And Ors on 6 February, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.917 of 2017
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1. Anil Kumar Singh
2. Pashupati Singh
3. Siya Ram Prasad Singh All are Sons of Late Hira Prasad Singh Resident of
Village Tarwara, P.S. Naubatpur, District Patna.
... ... Petitioner/s
Versus
1. Anoj Kumar
2. Manoj Kumar Both Sons of Late Kumar Umesh Chandra Singh
3. Brajesh Chandra Singh S/o Late Jagdish Kumar Kunwar All are residents of
Village Tarwana, P.S. Naubatpur, District Patna.
4. Ram Kumar Singh
5. Ram Padarath Singh
6. Krishna Kumar Singh
7. Arun Singh All are Sons of Late Ram Kinkar Prasad Singh
8. Ajeet Kumar S/o Late Lal Narayan Singh All are residents of Village -
Tarwana, P.S. Naubatpur, District Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Siddharth Harsh, Adv.
For the respondent nos. 4-8 : Mr. Narendra Kumar Sinha, Adv.
Mr. Nishikant Adv.
For the respondent nos. 1-3 : Mr.Jai Prakash Verma
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 06-02-2025
Heard learned counsel for the parties.
2. The instant petition has been filed for setting aside
the order dated 14.02.2017 passed by learned Sub Judge IV,
Danapur whereby and whereunder the application filed under
Order 26 Rule 9 and Section 151 of the Code of Civil Procedure
(in short "the Code") by the plaintiff/respondent 1 st set in Title
Suit No 433 of 2013 for appointment of Pleader Commissioner
stands allowed. Subsequently, by filing interlocutory application,
Patna High Court C.Misc. No.917 of 2017 dt.06-02-2025
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further relief has been sought against the report dated 16.01.2018
which was submitted by the learned Advocate Commissioner
before the learned trial court.
3. Learned counsel for the petitioner submits that the
plaintiffs have filed a completely frivolous suit without any
documents and in order to create evidence, they filed the
application under Order 26 Rule 9 of the Code and the learned
trial court erroneously allowed the said application mentioning
that for ascertaining the rights and possession over the suit
property, the report of the Pleader Commissioner was necessary
and thereby allowed the application for submission of report of
the Pleader Commissioner on the points mentioned in the
application dated 29.11.2016 filed by the plaintiffs under Order
26 Rule 9 of the Code. Learned counsel further submits that
claim of the plaintiff is based on the fact that one Jagdish Kumar
Kunwar got the suit property from the father of the petitioners,
Hira Prasad Singh as well as father of respondent nos. 4, 5, 6,7
Ram Kinkar Prasad Singh and grand father of respondent no. 8,
in the year 1935 and 1936, respectively by way of settlement.
But this claim is false and as Hira Prasad Singh was allotted part
of the suit property by way of partition after 1963 through
Partition Suit No. 55 of 1963. On the other hand, Ram Kinkar
Prasad Singh got the suit property by way of Title Partition Suit
Patna High Court C.Misc. No.917 of 2017 dt.06-02-2025
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No. 52 of 1958/15 of 1959 in which the final decree was
prepared on 03.02.1964 and thus, the Schedule 2 of the suit land
was allotted to Ram Kinkar Singh and his sons in 1964. If the
suit property came into the share of Hira Prasad Singh and Ram
Kinkar Prasad Singh in 1963 and 1964 respectively, it was not
possible for them to issue Hukumnama or make the settlement of
the suit land in 1935, 1936 in favour of Jagdish Kumar Kunwar.
When partition took place in the family of Ram Kinkar Prasad
Singh sons vide Title Partition Suit No. 180 of 1970, the
Schedule 2 land was included and partitioned and the final
decree was prepared on 13.03.1974. Learned counsel further
submits that in the life time of Jagdish Kumar Kunwar there was
partition of his family properties and a compromise decree has
been passed. But in the said partition, the present suit property
was not included and it goes on to show that the suit land does
not belong to Jagdish Prasad Kunwar or his sons. The said
partition suit was Title Partition Suit No. 61 of 1970 in which the
compromise decree was passed on 06.05.1971 and it also proves
that by that time the alleged Hukumnama and Zamindari receipts
with respect to the said property were not in existence. Thus, the
learned counsel submits that the plaintiffs knowing the fact that
they have got no paper of title or possession, tried to create
evidence in their favour by filing the application for appointment
Patna High Court C.Misc. No.917 of 2017 dt.06-02-2025
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of Pleader Commissioner and the learned Trial Court allowed the
same when there was no requirement for appointment of Pleader
Commissioner in the Title Suit No. 433 of 2013 when the issues
were yet to be settled and only pleadings have come on record.
However, when the written statement was filed by the
defendants/petitioner, the plaintiffs filed their application for
appointment of Pleader Commissioner and the same was allowed
by the learned trial court against the provisions of law as no
party could be allowed to gather evidence in his favour through
the Pleader Commissioner. Thus, learned counsel submits that
the impugned order is not sustainable and the same be set aside.
4. Learned counsel appearing on behalf of the
respondent 1st set vehemently submits that there is no infirmity in
the impugned order and the same does not require any
interference. Learned counsel submits that the learned trial court
subsequently modified the impugned order dated 14.02.2017
vide its subsequent order dated 22.09.2017 mentioning therein
that by mistake the word calling of the report of investigation
regarding the rights and possession on the suit property has been
typed in the order sheet while directing for enquiry report of the
Pleader Commissioner. Whereas, the direction was only to
investigate on the points given by the plaintiffs in the application
and the learned trial court further ordered for deleting the words
Patna High Court C.Misc. No.917 of 2017 dt.06-02-2025
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related to the calling for report regarding the rights and
possession of the suit property. Learned counsel further submits
that in compliance of the orders dated 14.02.2017 and
22.09.2017
, respectively learned Advocate Commissioner has
already submitted its report on 16.01.2018. In the said report it
has come after physical verification of the suit land that there is
building and 'Sahan' of the plaintiff west and south of the
disputed plot and tractor and trailer of the plaintiff was also
found on the suit plot. Learned counsel further submits that the
Hukumnamas of 16.12.1935 executed by Hira Prasad Singh and
of 18.11.1936 executed by Ram Kinkar Prasad Singh in favour
of the father of respondent 1st set, are genuine documents and in
any case right and title could be decided only after full trial.
Learned counsel further submits that there is no infirmity in the
impugned order and the same needs to be sustained.
5. On the other hand, learned counsel appearing on
behalf of the respondent nos. 4-8 supported the contention of the
learned counsel for the petitioners. Learned counsel further
submits that the current rent receipts have been issued in the
name of the answering respondents and Jamabandi was existing
the their names and a report to this effect has been given by the
concerned Government officials namely, Circle Officer and
Circle Inspector and this fact has been mentioned in the report of
Patna High Court C.Misc. No.917 of 2017 dt.06-02-2025
learned Sub Divisional Officer, Danapur in a proceeding under
Section 144 of the Cr.P.C. Learned counsel further submits that
the respondents are in agreement with the contention to be
forwarded by the petitioners and are adopting the same.
Learned counsel further submits that the impugned order is not
sustainable since it has been passed against the settled
proposition of law.
6. I have given my thoughtful consideration to the
submission made on behalf of the parties.
7. Perused the record.
8. Apparently, the Title Suit is at the initial stage but
from the impugned order it is evident that the issues have not
been settled by learned trial court and there is claim and counter
claim of the parties with regard to suit property and both sides
claim their right, title and possession of the suit property.
9. Order 26 Rule 9 of the Code reads as under:
"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 the Court:
Provided that, where the State Government has
made rules as to the persons to whom such
Patna High Court C.Misc. No.917 of 2017 dt.06-02-2025
commission shall be issued, the Court shall be
bound by such rules."
10. The bare reading of the provision makes it clear
that a local investigation could be ordered by the Court for the
purpose of elucidating any matter in dispute if it deems it
requisite or proper. Since the application has been filed for
appointment of Pleader Commissioner at the initial stage when
no occasion arose for the Court to elucidate such a point, the
impugned order would certainly run into rough weather. The
plaintiffs sought for the appointment of the Pleader
Commissioner to inspect, verify and report about detailed
physical features of suit plot with detailed description about
storage of sand, 'Ganaura', Tractor, flow of drain water etc. with
adjoining houses thereof and asking the same be shown in the
sketch map. The application was made prior to framing of issues.
When the parties are expected to lead evidence after framing of
the issues about their claim and unless there is any point which
needs elucidation by the Court, the appointment of Pleader
Commissioner is not proper. Moreover, every party has to prove
its case on the basis of its own evidence and the parties could not
take the recourse of the Court to gather evidence on their behalf.
The filing of the instant application for appointment of Pleader
Commissioner appears to be an exercise only towards this end
Patna High Court C.Misc. No.917 of 2017 dt.06-02-2025
and the same could not be appreciated.
11. In Padam Sen and Another Vs. The State of U.P.
reported in AIR 1961 SC 218, the three Judge Bench of the
Hon'ble Supreme Court has deprecated the tendency of the
parties to gather evidence through the Court and held that it is
not the business of the Court to collect evidence in favour of one
party. Therefore, in a matter related to investigation into the
disputed question of fact of possession, the power of
appointment of Commission for local investigation cannot be
exercised by the Court to assist the party to collect the evidence,
where the party can collect the evidence himself.
12. In the light of the discussion made hereinabove, I
am of the opinion that the impugned order is not sustainable as
the same is clearly an error of jurisdiction by the learned trial
court and hence, the impugned order dated 14.02.2017 is set
aside.
13. Accordingly, the present petition stands allowed.
(Arun Kumar Jha, J)
Anuradha/-
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 11.02.2025
Transmission Date N/A
