PREMLATA DEVI Vs. SWATANTRA KUMAR SINGH

JUDGEMENT

(1.) The instant Civil Misc. Petition has been filed by the petitioner under Article 227 of the Constitution of India for setting aside the order dtd. 19/6/2018 passed in Title Suit No. 287 of 2014 by learned Sub. Judge-IV, Saharsa whereby and whereunder the learned trial court rejected the petition dtd. 22/12/2017 filed by the petitioner for appointment of Survey Knowing Pleader Commissioner.

(2.) The facts of the case as it appears from the record are as follows:-

(3.) Learned counsel for the petitioner submitted that the order of the learned trial court suffers from material irregularity as the learned trial court has not considered whether it was not necessary in the interest of justice to get physical verification report with regard to dispute raised in the case. It has also not considered whether the physical verification as requested by the defendant/petitioner is necessary for fair adjudication and to decide the real controversy in the case. Learned counsel further submitted that the learned trial court went on the premises that the report being sought on the land is not the suit property but it missed the point that the plaintiffs themselves admitted that entire 10 katha land came into possession of the plaintiff/respondent no. 2 and the petition of the defendant/petitioner was for inspection and report with regard to aforesaid land and the passage attached to the said land. Thus, the learned trial court erred while holding that the petition filed by the defendant/petitioner is not related to the suit land and it would not be helpful to elucidate any matter in dispute between the parties. The learned trial court also did not take into consideration the fact that the plaintiff/respondent no.1 has given false and contradictory statement in his evidence with regard to construction of house and free space. Learned counsel further submitted that a false statement can be verified only by spot verification. Moreover, it is case filed for easementary rights and it would be necessary to take into consideration the existing condition of the plots in possession of the plaintiffs.