IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 5353 of 2008
1. Shamima Khatoon
2. Md. Parwej Khan
3. Firoz Khan
4. Sahnawaj Khan
5. Sahwaj Khan
6. Shadeb Khan ... Petitioners
Versus
1. Rajesh Kumar Sahu
2. Dayanand Kumar Sahu
3. Kundan Kumar Sahu
4. Rukaiya Begum
5. Bashir Ahmad Khan
6. Sabir Ahmad Khan
7. Dr. Nazir Ahmad
8. Rahina Parween
9. Quaizer Ahmad ... Respondents
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CORAM: HON'BLE MR. JUSTICE D.N.PATEL
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For the petitioners: Mr. R.N.Sahay, Advocate
For the respondents: Mr. Arvind Kr. Sinha, Advocate
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th
10/ Dated: 24 November, 2009
1. The present petition has been preferred mainly being
aggrieved by an order passed by the Sub-Judge I, Giridih,
dated 10th September, 2008 in Partition Suit No. 8 of 1976,
which is at Annexure 4 to the memo of present petition.
2. Learned counsel for the petitioners (original plaintiffs), who
have instituted Partition Suit No. 8 of 1976, has vehemently
contended that a Pleader Commissioner was appointed
under Order XXVI Rule 9 of the Code of Civil Procedure,
upon an application preferred by the purchasers-defendants
and in the measurement by the Pleader Commissioner, there
was some description about northern boundary, which was
incorrectly mentioned in the suit property by the original
plaintiffs and, therefore, there was a need of rectification of
northern boundary in the original plaint and, therefore, an
application for amendment of the plaint was preferred, but,
the same was dismissed by the trial court and, therefore, a
writ petition bearing W.P.(C) No. 1869 of 2007 was preferred
before this Court and this Court vide order dated 10th July,
2007 dismissed the claim of the present petitioners and it
was observed by this Court that at an execution stage, no
amendment in the plaint is allowed. Nonetheless, the Pleader
Commissioner will act as per the evidence on record, at the
time of drawing final decree in the Partition Suit.
2.
3. It is also submitted by the learned counsel for the petitioners
(original plaintiffs) that the Pleader Commissioner has given
a report, which is annexed as Annexure 6 along with I.A. No.
33 of 2009 and as per the detailed map, given at internal
page no.10 of the said report, the plot, in dispute, is narrated
by boundary ABCD and this plot is to be measured. As per
the learned counsel for the petitioners, this is not only Plot
No.337, but, it includes Plot No. 123 also, whereas the
contesting respondents submitted that the said boundary
ABCD is a boundary of Plot No. 337 and the land, in
question, and no error has been committed by the Pleader
Commissioner in the trial court. Learned counsel for the
petitioners has relied upon several documentary evidences.
4. Be that as it may, the order passed by the trial court dated
10th September, 2009 in Partition Suit No. 8 of 1976, at
Annexure 4 to the memo of petition, states that the Pleader
Commissioner must be allowed to measure the said plot,
which is now drawn as ABCD in the Pleader Commissioner’s
report, keeping all the contentions of the parties to the suit
open and if anybody is interfering with the measurement,
those hindrances and barriers ought to be removed. If the
doors are closed by anybody, then the doors are bound to be
broken open, but, the learned counsel for the petitioners
very fairly submitted that there is no need of breaking any
door or window and they are always inviting the Pleader
Commissioner for measurement of the boundary ABCD, and
all the contentions and rights of the parties in Partition Suit
No. 8 of 1976 must be kept intact, as they are. The
measurement is not a problem at all for the original
plaintiffs, but, the learned counsel for the original plaintiffs
vehemently submitted that they have objection if the
measurement is treated as an admission of any fact on the
part of the plaintiffs.
5. Learned counsel for the purchasers-defendants submitted
that at present no final decision has been taken by the trial
court in Partition Suit No. 8 of 1976 and final decree is yet to
be prepared. Only the measurement process is going on and,
as stated at Annexure-6, which is demarcated at ABCD is to
be measured by measuring boundary ABCD. No contention
of the original plaintiffs and no contention of the original
3.
purchasers-defendants is deemed to have been waived or
settled. All the contentions and rights of the parties have
been kept intact, as they are, and left open for a decision by
the trial court, but, the measurement process ought to be
completed and the original plaintiffs cannot interfere with
the measurement proceedings of the plot, demarcated at
ABCD at Annexure 6, which is stated in I.A.No. 33 of 2009.
6. In view of the aforesaid limited submissions and looking to
the impugned order, passed by the Sub-Judge I, Giridih,
dated 10th September, 2008 in Partition Suit No. 8 of 1976, it
appears that the trial court wants a measurement to be done
of a plot, demarcated as ABCD, as stated at Annexure 6 to
I.A.No. 33 of 2009. If the plaintiffs are interfering with the
measurement process or method, then it has been stated in
the impugned order that the Pleader Commissioner can
break open the door and measure the boundary, demarcated
as ABCD, but, it is fairly submitted by the learned counsel
for the original plaintiffs that there is no question of breaking
of any door or window, as they are ready to co-operate the
court-commissioner. So long as the contention of the original
plaintiffs are concerned, all their contentions are kept open,
about Plot No. 337 and pertaining to the entries in the
revenue records and such other arguments, which are going
to be canvassed by the original plaintiffs before the trial
court are left as they are for adjudication by the trial court.
The original plaintiffs are ready for measurement, as per the
order, passed by the trial court dated 10th September, 2008,
at Annexure 4 to the memo of petition and, therefore, as the
willingness is already shown in the process of delivery of
justice, I see no reason to entertain this writ petition. What
is ought to be kept in mind by the Pleader Commissioner is
that whenever they are going for measurement, they shall, in
advance, intimate the original plaintiffs, so that all the doors
and windows may be kept open for measurement. The
Pleader Commissioner shall carry out the measurement
process as early as possible and practicable, without any
loss of time.
7. In view of the aforesaid submission, the writ petition as also
I.A.No. 33 of 2009 are hereby disposed of. Full cooperation
shall be given by the original plaintiffs, so far as
4.
measurement process is concerned and if there is a
cooperation for measurement of a plot, demarcated as
ABCD, as stated at internal page no.10 of the Pleader
Commissioner’s report (Annexure 6 to I.A. No. 33 of 2009),
there is no need of any police force to be taken by the
Pleader Commissioner along with him, while doing
measurement.
(D.N. Patel, J)
A.K.Verma/