Rajesh Kant Sinha v. Pradeep Kumar Agrawa

CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ......... For the Petitioner(s) : Mr. A. K. Sinha, Advocate For the Opp. Party 1 : Mr. Manoj Kr. No.II, Advocate For the O.P. Nos.2 to 8 : Mr. Abhishek Kumar, Advocate Mr. Manish Yadav, Advocate …... 05/ 15.09.2025. Heard, learned counsel for the parties.

Petitioner is the plaintiff, and the instant CMP has been filed under Article 227 of the Constitution of India for setting aside the order dated 22.01.2025 passed by learned Sub Judge-VI, Chatra, in Original Suit No.90 of 2019 whereby and whereunder an application for appointment of Survey Knowing Pleader Commissioner under Order XXVI Rule 9 CPC for inspection of the suit land, as detailed in Schedule-1 of the plaint has been rejected.

Petitioner has filed the said suit for declaration of right, title and interest and in the alternative, with an alternative prayer for recovery of possession with respect to the suit property as detailed in Schedule 1 of the plaint. Description of the property is given with khata and plot numbers, with boundaries thereof. 1

It is submitted by learned counsel for the petitioner that as per the written statement filed by the defendant No.5/ Opp. Party No.5, do not lay claim over the suit land in question, therefore the ascertainment of physical possession is essential for the ends of justice, so that peaceful possession is not disturbed.

It is also argued that the petition has been rejected only on the ground that the case was listed for framing of the issues. However, during pendency of the instant CMP, issues have also been framed.

At the outset it need to be noted that the object of appointment of Pleader Commissioner under Order XXVI Rule 9 CPC is mainly to enable the Court to properly and effectively appreciate the evidence with regard investigation, physical, measurement, boundaries, possession, identification of property or the extent of encroachment, if any, which cannot be conveniently proved by oral or documentary evidence alone. It is not the object to assist a party to collect evidence, where the parties can themselves lead the evidence on the points which they seek the appointment of the commissioner. This cannot be a substitute for evidence led by both the sides, as the Commissioner acts as an officer of the Court, ensuring impartial fact finding which reduces conflicting and exaggerated oral evidence of the parties.

This is a suit, inter-alia, for recovery of possession, meaning thereby, that part of the suit property is in the possession of the defendant(s).

In the present case, the description of the suit property has been given and asserted on behalf of the plaintiff and the onus lies on him to prove the facts by leading evidence in support of the averments made. At this stage when the trial has not made any headway the appointment of pleader commissioner is uncalled for and is not to serve the object for which it can be appointed.

Accordingly, I do not find any infirmity in the impugned order to warrant any interference.

The instant CMP being devoid of merit and consequently stands dismissed. Pending I.A., if any, also stands disposed of. (Gautam Kumar Choudhary, J.) Sandeep/- 2