RAMAKRUSHNA NAYAK Vs. MANOJ KUMAR BEHERA

JUDGEMENT

(1.) Instant petition is filed by the petitioner assailing the impugned decision by order dtd. 20/2/2024 as at Annexure-8 of learned Civil Judge, Junior Division, Nimapara in I.A. No.101 of 2023 arising out of the suit in C.S. No.162 of 2023 for having appointed a Pleader Commissioner in terms of Order 39 Rule 7 CPC at the behest of the opposite parties on the grounds inter alia that such a decision is not sustainable in law, hence, therefore, the same is liable to be interfered with and set aside.

(2.) The petitioner is the plaintiff in the suit instituted seeking a relief permanent injunction against the opposite parties in respect of the suit schedule property and not to interfere in his possession over the same along with the proforma defendants. The suit land is morefully described in the plaint as at Annexure-1. By pleading that the opposite parties do not have any right title, interest and possession over the suit schedule property, it has been claimed by the petitioner in Annexxure-1 that he is being threatened by them, who are contemplating to raise illegal construction there over on the strength of a void gift deed and mutation RoR issued in favour of the Secretary Salanga ME School. It is further pleaded that the school in question is no more there but in view of the mutation RoR, the opposite parties are creating disturbance over and in respect of the suit land, which is in possession of the petitioner and his family and is being used for cultivation. In the said suit, opposite party No.1, namely, defendant No.1 filed WS and claimed that defendant No.2 for himself and as guardian and next friend of the minors of the family voluntarily executed the gift deed in favour of the school and delivered possession of the suit land and, hence, denied the claim of the petitioner and also challenged his authority to challenge the deed. According to opposite party No.1, defendant No.2 established the school and remained as its Headmaster and in order to receive recognition and for construction of school building with a play ground, he executed the gift deed in favour of the school. The further pleading is that the registered gift deed was executed on 30/11/1996 and it was acted upon and hence, binding to the petitioner and that apart, the suit land was muted in the name of the Secretary of the school in respect of Khata No.379/8 and the same is within the knowledge of the other side and public at large and also alleged that the petitioner does not have any personal interest but by suppressing the real facts and in order to harass the opposite parties, instituted the suit.

(3.) In the suit, the petitioner filed the I.A. for a direction to the opposite parties not to take up any construction over the suit land till disposal of the suit and therein, an objection was received from the opposite parties. In the said I.A., the opposite parties moved the application under Order 39 Rule 7 CPC to depute a Pleader Commissioner to inspect and report the topography of the suit land. According to the opposite parties, as per the revenue records, the school is situated over the suit plot and after verification, the State Government has sanctioned fund for further construction of its building and in so far as, the petitioner is concerned, he is not in possession of the same. Since, the claim of the petitioner on the basis of the pleading that there is no such school standing over the land in question, the opposite parties, therefore, requested the learned court below to depute a Pleader Commissioner for inspection before considering the I.A. for any such order restraining them from making construction as has been pleaded by the petitioner. While considering such a request, learned Civil Judge, Junior Division, Nimapara in I.A. No.101 of 2023 filed under Order 39 Rules 1 and 2 CPC allowed inspection to be held by a Commission and to report back revealing whether any school building is situated over the suit plot or it is a paddy field. The said decision of learned court below has been questioned by the petitioner on the ground that any such attempt with appointment of the Pleader Commissioner would amount to collection of evidence through the process of the Court for and on behalf of the opposite parties and the same is impermissible under law.