Patna High Court
Most Manju Devi vs Awadhesh Kumar on 25 July, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.662 of 2025
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1. Awadhesh Kumar Son of Late Ragho Singh, Resident of village - Saharsa
P.S. Goh now Upahara Distt. - Aurangabad (Gaya), At Present Resident of
Mohalla -Jai Prakash Nagar, House of Late Kedar Nath Sharma, P.S -
Jakkanpur, Distt. - Patna.
2. Suresh Prasad Singh, Son of Late Ragho Singh, Resident of village - Saharsa
P.S. Goh now Upahara Distt. - Aurangabad (Gaya), At Present Resident of
Mohalla -Jai Prakash Nagar, House of Late Kedar Nath Sharma, P.S -
Jakkanpur, Distt. - Patna.
3. Ramesh Kumar, Son of Late Kedar Nath Sharma, Resident of village -
Saharsa P.S. Goh now Upahara Distt. - Aurangabad (Gaya), At Present
Resident of Mohalla -Jai Prakash Nagar, House of Late Kedar Nath Sharma,
P.S - Jakkanpur, Distt. - Patna.
4. Brajesh Kumar, Son of Late Kedar Nath Sharma, Resident of village -
Saharsa P.S. Goh now Upahara Distt. - Aurangabad (Gaya), At Present
Resident of Mohalla -Jai Prakash Nagar, House of Late Kedar Nath Sharma,
P.S - Jakkanpur, Distt. - Patna.
5. Girijesh Kumar, Son of Late Kedar Nath Sharma, Resident of village -
Saharsa P.S. Goh now Upahara Distt. - Aurangabad (Gaya), At Present
Resident of Mohalla -Jai Prakash Nagar, House of Late Kedar Nath Sharma,
P.S - Jakkanpur, Distt. - Patna.
6. Madhu Kumari, D/o Kedar Nath Sharma, Resident of village - Saharsa P.S.
Goh now Upahara Distt. - Aurangabad (Gaya), At Present Resident of
Mohalla -Jai Prakash Nagar, House of Late Kedar Nath Sharma, P.S -
Jakkanpur, Distt. - Patna.
... ... Petitioner/s
Versus
1. Most. Manju Devi, W/o - Late Gaya Nath Kumar, Resident of village
-Dumri, P.S. - Simari, Distt. - Bhojpur At Present Resident of Mohalla -Jai
Prakash Nagar, P.S - Jakkanpur, Distt. - Patna.
2. Ashutosh Kumar, Son of Late Gaya Nath Kumar, Resident of village
-Dumri, P.S. - Simari, Distt. - Bhojpur At Present Resident of Mohalla -Jai
Prakash Nagar, P.S - Jakkanpur, Distt. - Patna.
3. Sunil Kumar, Son of Late Gaya Nath Kumar, Resident of village -Dumri,
P.S. - Simari, Distt. - Bhojpur At Present Resident of Mohalla -Jai Prakash
Nagar, P.S - Jakkanpur, Distt. - Patna.
4. Brajesh Kumar, Son of Late Gaya Nath Kumar, Resident of village -Dumri,
P.S. - Simari, Distt. - Bhojpur At Present Resident of Mohalla -Jai Prakash
Nagar, P.S - Jakkanpur, Distt. - Patna.
... ... Respondent/s
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with
CIVIL MISCELLANEOUS JURISDICTION No. 404 of 2024
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Patna High Court C.Misc. No.662 of 2025 dt.25-07-2025
2/6
1. Most Manju Devi Wife of Late Gaya Nath Kumar, residence of Mohalla Jai
Parakash Nagar, P.S.-Jakanpur, District-Patna.
2. Ashutosh Kumar son of Late Gaya Nath Kumar, residence of Mohalla Jai
Parakash Nagar, P.S.-Jakanpur, District-Patna.
3. Sunil Kumar, son of Late Gaya Nath Thakur, residence of Mohalla Jai
Parakash Nagar, P.S.-Jakanpur, District-Patna.
4. Brajesh Kumar, son of Late Gaya Nath Kumar, residence of Mohalla Jai
Parakash Nagar, P.S.-Jakanpur, District-Patna.
... ... Petitioner/s
Versus
1. Awadhesh Kumar son of Late Ragho Singh, resident of Jai Prakash Nagar,
P.S.-Jakanpur, District-Patna.
2. Suresh Prasad Singh, son of Late Ragho Singh, resident of Jai Prakash
Nagar, P.S.-Jakanpur, District-Patna.
3. Kedar Nath Sharma, Son of Late Ram Sewak Sharma, resident of Jai
Prakash Nagar, P.S.-Jakanpur, District-Patna.
... ... Respondent/s
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Appearance :
(In CIVIL MISCELLANEOUS JURISDICTION No. 662 of 2025)
For the Petitioner/s : Mr.Mukesh Kumar No.1, Advocate
For the Respondent/s : Mrs. Archana Sinha, Senior Advocate
Ms. Richa Rajiv Singh, Advocate
(In CIVIL MISCELLANEOUS JURISDICTION No. 404 of 2024)
For the Petitioner/s : Mr.Archana Sinha @ Archana Shahi, Senior
Advocate
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 25-07-2025
The record taken up on mentioning being made on
behalf of the petitioners.
2. Heard learned counsel appearing on behalf of the
petitioners and learned senior counsel appearing on behalf of the
respondents.
In Civil Misc. No.662 of 2025
3. The petitioners are aggrieved by the order dated
Patna High Court C.Misc. No.662 of 2025 dt.25-07-2025
3/6
27.03.2025
passed by the learned Civil Judge (Junior Division)-
III, Patna Sadar in Title Suit No.15 of 1987 whereby and
whereunder the learned trial court rejected the application dated
03.05.1988 filed on behalf of the petitioners for appointment of
Advocate Commissioner.
4. The petitioners have challenged the order dated
01.12.2023 passed by the learned Civil Judge (Junior Division)-
III, Patna Sadar in Title Suit No.15 of 1987 whereby and
whereunder the learned trial court rejected the application dated
11.05.2023 filed on behalf of the petitioners under Order 26
Rule 10A of the Code of Civil Procedure for appointment of
Survey Knowing Pleader Commissioner. Further, the petitioners
are aggrieved by the order dated 05.03.2024 passed by the same
court in the same title suit whereby and whereunder the learned
trial court rejected the application dated 22.12.2023 filed by the
petitioners under Order 47 Rule 1 of the Code of Civil
Procedure.
In Civil Misc. Nos. 662 of 2025 & 404 of 2024
5. It has been jointly prayed by the parties that they
have no objection for appointment of Survey Knowing Pleader
Commissioner/Pleader Commissioner, if the same helps the
Patna High Court C.Misc. No.662 of 2025 dt.25-07-2025
court in deciding the question before it for adjudication of the
dispute between the parties.
6. Shorn of unnecessary details, the facts of the case
are that the petitioners of Civil Misc. No.404/2024 are plaintiffs
before the learned trial court and the petitioners are respondents
in Civil Misc. No. 662/2025. On the other hand, the defendants
of Title Suit No. 15/1987 are respondents in Civil Misc.
No.404/2024 and they are petitioners of Civil Misc.
No.662/2025 in which respondents are the plaintiffs. For the
sake of convenience, the parties would be referred with their
status before the learned trial court as plaintiffs or defendants.
7. The plaintiffs have filed the title suit for declaration
of their title over the suit land of Plot No. 24, Khata No.16,
Tauzi No.5204, Area 8' x 39.9" northern portion of plaintiffs'
Plot No.24 of village-Jai Prakash Nagar, Jakkanpur, Patna. The
plaintiffs further sought declaration that defendants have no
right of passage in the suit land. The plaintiffs as well as
defendants purchased 2 katha land of Plot No. 24 by different
sale deeds dated 29.03.1974. The sale deed mentions 2 katha
land of petitioners is east to west 39'x 9" and north to south
66'x3". On the other hand, the sale deed of defendants mentions
the said 2 Katha land is east to west 41' x 9" and north to south
Patna High Court C.Misc. No.662 of 2025 dt.25-07-2025
66' x 3". The defendants claim that at their request, exchange of
lands between defendants and the plaintiffs was made and by
the said oral exchange, plaintiff no.1 agreed to exchange a
portion of his land in extreme north for Rasta of the defendants
and, as such, in April, 1974, the defendants gave the eastern
portion of their land measuring 5' x 3" east to west and 60' long
north to south for the Rasta of the defendants. The plaintiffs
claim that in the light of case of the parties, scientific
measurement of lands of both the parties is most essential for
right decision of the suit. Similarly the defendants claim that
passage of 8 feet which is being used for Rasta by the
defendants is only way of entry and exit of the house of the
defendants, though the plaintiffs claim that defendants have
alternative way to entry and exit. On this ground, the defendants
filed a petition on 3.05.1988 for appointment of Advocate
Commissioner for spot verification as to whether alternative
way of entry and exit for residential house of the defendants is
available or not.
8. Since both the parties agree to the appointment
of Survey Knowing Pleader Commissioner/Advocate
Commissioner, without going into the merits of the respective
case of the parties and without testing the correctness of the
Patna High Court C.Misc. No.662 of 2025 dt.25-07-2025
impugned orders, the matter is remanded to the learned trial
court and the parties are directed to make their prayer for
appointment of Survey Knowing Pleader Commissioner/
Advocate Commissioner on mutually agreed points for which
writ could be issued to the learned Commissioner by the learned
trial court.
9. Accordingly, both the petitions are disposed of.
(Arun Kumar Jha, J)
V.K.Pandey/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 28.07.2025
Transmission Date NA
