Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No. 4051 of 2012 ====================================================== Most.Chinta Devi Wife of Shri Ram Lagan Mahto, resident of Village- Gabhtal, P.O. and P.S. Danapur, District- Patna. Versus 1. Shrimati Shakuntala Devi Wife of Sitaram Singh, Resident of Village- Gabhtal, P.O. and P.S. Danapur, District- Patna. .... .... Defendant I st Party / Petitioner .... .... Plaintiff / Opposite Party Ist Set. 2. Sona Devi Wife of Ram Nath Mehta, resident of Village- Makhania Kuwan, P.O. and P.S.-Pirbahore, District- Patna. Defendant / Opposite Party 2nd Set. ====================================================== Appearance : For the Petitioner For the Respondents ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL ORDER : Mr. : Mr. 6. 10-12-2013
Legal Reasoning
Heard Mr. J. S. Arora, learned counsel for the petitioner, Mr. Sanjay Singh, learned counsel for the respondent no. 1 and Mr. Arun Kumar No. 1, learned counsel for the respondent no. 2. The present application under Article 227 of the Constitution of India is directed against the order dated 26.06.2009 passed by the Sub Judge - II, Patna in Title Suit No. 73 of 1974, by which the Advocate Commissioner report dated 18.01.2006 has been set aside and a new Survey Knowing Advocate Commissioner is sought to be appointed. Learned counsel for the petitioner submits that she is the defendant in the suit and that after the Patna High Court CWJC No.4051 of 2012 (6) dt.10-12-2013 2/6 preliminary decree in the suit, a Survey Knowing Advocate Commissioner was appointed for the purposes of ‘Takhtabandi’ and a report was also submitted earlier in the year 2003, which was challenged by the respondent no. 1 and finally the exercise was gone into afresh and a report submitted which is the subject matter of the present proceeding. Learned counsel submits that though from the order impugned dated 26.06.2009 it appears that various discrepancies in the report of the said Advocate Commissioner have been noted, but in fact the defects are merely clerical in the sense that wrong numbers of various Khatas have been mentioned in the report, which are sought to be shown as major discrepancies, are in fact merely typographical and clerical errors and if the same is tallied with the plaint itself and necessary corrections made in the number, the rest of the details with regard to plot numbers and area shall fall in place. Thus, according to him the Court, at the first instance, should have applied its mind on this aspect and upon the same being done, if the Court still felt that issues remained unanswered or the report was incorrect, the Court could have again appointed a Survey Knowing Advocate Commissioner for going into the exercise of ‘Takhtabandi’ afresh. However, without doing the same, the matter in a routine manner being referred to a new Survey Knowing Advocate Commissioner especially in the Patna High Court CWJC No.4051 of 2012 (6) dt.10-12-2013 3/6 background of the fact that the suit is of the year 1974, the Court was not justified in appointing a fresh Survey Knowing Advocate Commissioner in the matter. Learned counsel for the respondent no. 1 submits that the errors are not clerical as details of the defects have been pointed out which will make it clear that there are major discrepancies. Learned counsel further submits that the share allotted to the respondent no. 1 has not been rightly done in the report and if the same is done, then she also will be satisfied and have no objection to the said report. Learned counsel submits that as of now the Advocate who has submitted the report is not alive. However, to the query of the Court as to what objection was raised by the respondent no. 1 before the Court below, learned counsel was not in a position to reply. Learned counsel for the respondent no. 2
Decision
supports the writ petition and submits that it is the conduct and attitude of the respondent no. 1, which is creating problems since she is in possession of a major portion of the suit property and thus there is a vested interest involved to keep the matter pending and not allowing the suit to attain finality as she will have to part with portions of land over which as of now she is in possession. Having considering the rival contentions, this Court is of the opinion that the Court below has not Patna High Court CWJC No.4051 of 2012 (6) dt.10-12-2013 4/6 decided the issue with regard to the report submitted by the Advocate Commissioner in the manner which was required, moreso, in the background of the fact that earlier also such a report submitted by another Advocate Commissioner was rejected and a fresh exercise was gone into. There is lack of consideration to the facts of the case in the sense that without the errors, which have also been noted in the order impugned, being compared with the details appearing in the plaint schedule, a finding has been given which prima facie gives an impression that the errors, irregularities and defects are grave enough to warrant appointment of a fresh Survey Knowing Advocate Commissioner. Whether upon mere correction of the Khata numbers in the report as per the plaint itself, the rest of the information would fall into place, has absolutely not being considered by the Court. In view of the objections filed by respondent no. 1 before the Court below not being on record, this Court can only presume that there was no other serious objection by the respondent no. 1 with regard to the report which was under consideration. The only challenge appears to be with regard to the details of the land which were required for ‘Takhtabandi’. This Court may hasten to add at this juncture that the Court below is not precluded from rejecting the report submitted by the Advocate Commissioner and it is always open for it to direct undertaking a fresh exercise by appointment of a new Survey Patna High Court CWJC No.4051 of 2012 (6) dt.10-12-2013 5/6 Knowing Advocate Commissioner, but the power has to be used judiciously and should also be as a last resort when the Court itself feels that it cannot finally taken a view on the basis of such report. In the present case, the Court was required to consider the aforesaid fact as to whether mere correction of the Khata numbers in the report, and that too as per the details given in the plaint itself, could have resulted in the report being clear with regard to the other details namely the plot numbers and their area. This not having been done, this Court feels that the order impugned cannot be sustained. Accordingly, the same is set aside. The Court shall now consider the matter afresh with regard to acceptance of the report submitted by the Advocate Commissioner on 18.01.2006 in light of the discussions made hereinabove. The Court shall consider as to whether by merely correcting the description of the land relating to the Khata numbers or any other clerical errors which the parties may point out to the Court, shall otherwise make the report acceptable. For such fresh consideration, the parties shall have full opportunity to assist the Court by placing their respective points of view. The exercise be positively conducted and fresh order passed within one month from the date of receipt of a copy of this order by the Court. Thereafter, the Court shall also take appropriate steps in the matter so that the final decree is Patna High Court CWJC No.4051 of 2012 (6) dt.10-12-2013 6/6 prepared expeditiously as the suit itself is of the year 1974, that is, almost 40 years old. The application stands allowed in the aforementioned terms. Anand Kr. (Ahsanuddin Amanullah, J.)