IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 5345 of 2008
Kailash Chandra Mahto and others ... Petitioners
Versus
Ram Prasad Mahtha ... Respondent
.............
CORAM: HON'BLE MR. JUSTICE D.N.PATEL
------------
For the Petitioners Mr. Atanu Banerjee, Advocate
For the Respondent Mr. R.C. Khatri, Advocate
-----------
5/ Dated: 1st of April, 2009
1. The present petition has been preferred under Article 227 of
the Constitution of India against the order passed by trial Court
dated 25th of September, 2008 in Title Suit No. 22 of 2003, whereby
an application preferred by the present petitioners (original
substituted defendants) under Order 26 Rule 10 (A) of the Code of
Civil Procedure, for appointment of the Court Commissioner, was
dismissed.
2. Having heard the learned counsel for both the sides and
looking to the facts and circumstances of the case, I see no reason to
entertain this writ petition and the same deserves to be dismissed
for the following facts and reasons:
(i) It appears from the fact of the case that respondent, who has
instituted Title Suit No. 22 of 2003 and has claimed ownership of
Plot No. 51 on the basis of a registered sale deed. The defendants
are also claiming ownership upon the said plot of land through
another registered sale deed.
(ii) It also appears from the fact of the case that the whole
evidence is taken by both the parties and stage of evidence has also
been closed for original plaintiff as well as for original defendant in
the title suit.
(iii) It appears that the present petitioners (original substituted
defendants) had preferred an application under Order 26 Rule 10
(A) of C.P.C. for the appointment of the Court Commissioner for
taking further evidence in form of Court Commissioner’s report. It
appears that because of certain witnesses’ deposition, petitioners-
original defendants are confused about some merger of plot No. 51
with Plot No. 201. There is also confusion created by the original
–2-
defendants i.e. by the present petitioners that if the decree is to be
drawn and if plot No. 51 is to be separated, it will create difficulties
and, therefore, an application under Order 26 Rule 10 (A) of C.P.C.,
has been filed. Looking to the facts and circumstances of the case,
both the parties are claiming the land in question i.e. Plot No. 51 on
the basis of registered sale deed. Whether the plot No. 51 is
amalgamated with Plot No. 201, makes no difference in deciding a
case. No further evidence can be created through the report, which
is to be given by the Court Commissioner under Order 26 Rule 10
(A) of C.P.C., especially when the whole evidence is taken over and
stage for taking evidence, is closed for both the parties. Now, the
matter is kept for final argument before the trial Court. Assuming
without admitting that there is merger of plot No. 51 with plot No.
201, always the same is separable and severable, looking to the
measurement of plot No. 51. It appears that this application, which
has been preferred under Order 26 Rule 10 (A) of C.P.C., is only as
a delay technique by the present petitioners (original substituted
defendants).
3. In view of this fact, I see no reason to entertain this petition.
No error has been committed by the trial Court in dismissing the
application, preferred by the present petitioners (original
substituted defendants).
4. I hereby direct the trial Court to hear and decide the Title
Suit No. 22 of 2003, as expeditiously as possible preferably on or
before 30th of August, 2009.
5. The writ petition is, accordingly, dismissed.
(D.N. Patel, J.)
Ajay/