DIVYA KUMARI Vs. JUGESHWAR NATH SRIVASTAVA

JUDGEMENT

(1.) The present petition has been filed under Article 227 of the Constitution of India for setting aside the part of the order dtd. 17/1/2023 passed by the learned Additional District Judge-VI, Danapur, Patna in Title Appeal No. 79/2019 (Divya Kumari & Ors. vs. Jugeshwar Nath Srivastava) whereby and whereunder the application of the present petitioners dtd. 7/4/2022 filed for scientific measurement of the land in question has been dismissed. The petitioners have further prayed for direction to the learned first appellate court to appoint a Survey Knowing Advocate Commissioner to conduct and hold scientific measurement of the disputed plot of land by allowing the petitioners' petition dtd. 7/4/2022 filed under Order 26 Rule 10 A of the Code of Civil Procedure (hereinafter referred to as 'the Code') while holding that the learned first appellate court failed to exercise the jurisdiction vested in it.

(2.) The conspectus of the case of the parties is that in the year 2011, Title Suit No. 112/2011 (Smt. Sudha Devi and Ors. vs. Jugeshwar Nath Srivastava) was filed by the plaintiffs in the court of learned Sub Judge, Danapur, Patna seeking, inter alia, declaration of title and a decree for removal of encroachment and also for removal of construction of house/shop made by the defendant over the suit land. In Schedule-1 of the plaint, the plaintiffs have described the encroached portion measuring 1.5 Katha of land by the defendant. During the pendency of the suit, the plaintiffs through amendment described the illegal construction made by the defendant in Schedule II which is part and parcel of the Schedule-I land of the plain. The defendant appeared and filed his written statement contesting the suit. During pendency of the suit, original plaintiff nos. 1 and 2 (Sudha Devi and Devendra Prasad) died and they were substituted by their two daughters namely, Divya Kumari and Dipti Kumari. Subsequently, vide power of attorney dtd. 28/12/2012, all the three heirs of the original plaintiff nos. 1 and 2 including plaintiff no.3 namely, Sushant Kumar granted a fresh power of attorney in favour of Jang Bahadur Singh, who has since then been pursuing the case in the title suit as well as in the title appeal. There appears to be a chunk of land measuring 33 Katha 3 Dhur under Khata No. 144, situated at Mauza-Saguna, Danapur, Patna, out of which, plaintiffs/appellants/petitioners have claim over 8 Katha 3 Dhur, whereas defendant has claim over 25 Katha in the same Plot No. 363 (part). The plaintiffs claimed that defendant has encroached upon 1.5 Katha of land and for removal and restoration of the same, the suit has been filed by the plaintiffs.

(3.) Further case of the plaintiffs is that on their land of 8 Katha 3 Dhur, the plaintiffs made pilling work of about 8 feet deep at a distance of 7 feet center to center over their land in the year 2003 itself, but the plaintiffs did not erect any boundary wall. However, the plaintiffs claimed that defendant. who owns a big area of same plot adjacent west to the land of the plaintiffs, forcibly made a boundary wall on 23/1/2011 over their land by encroaching about 1 Katha 10 Dhur and, in this way, the defendant amalgamated the encroached land with his own land. The petitioners further claimed that during pendency of the suit at the instance of the plaintiffs (wrongly submitted as it would become clear later on), one Pleader Commissioner was appointed to ascertain the area of encroached land, but the Pleader Commissioner did not measure the land scientifically and came in collusion with defendant and submitted a faulty and illegal report. Subsequently, at the instance of the plaintiffs and pursuant to the direction of the learned trial court, the concerned Circle Officer appointed a Government Anchal Amin in order to find out the encroached area made by the defendant. The plaintiffs further claimed that subsequently on 31/8/2018, the learned trial court directed the Circle Officer, Danapur to get the measurement of land at the cost of the plaintiffs and the Government Amin visited the spot for measurement, but the defendant and his private Amin restrained the Government Amin from measuring the total disputed lands i.e. 33 Katha and 3 Dhur fully and scientifically and the Government Amin submitted a report on 15/9/2018. The learned trial court having considered the matter and vide judgment and decree dtd. 3/8/2019 dismissed the suit of the plaintiffs. Aggrieved by the decision of the learned trial court, the plaintiffs filed Title Appeal No. 79/2019 which is pending adjudication before the learned court of Additional District Judge-VI, Danapur, Patna. During pendency of title appeal, the plaintiffs/appellants filed a petition on 7/4/2022 under Order 26 Rule 10A of the Code for scientific measurement of the entire plot in question so that the total area of Plot No. 363 could be measured scientifically. A rejoinder was filed on 20/4/2022 by the defendant/respondent. The application dtd. 7/4/2022 was dismissed by the learned first appellate court vide order dtd. 17/1/2023. The said order has been assailed before this Court in the present civil miscellaneous petition.