NIRMALA DEVI Vs. RAJ KUMARI DEVI

JUDGEMENT

(1.) HEARD learned counsel for the petitioners.

(2.) THE petitioners are aggrieved by the part of the order dated 18.10.2008, passed by the Munsif - ll, Saran at Chapra in Misc. Case No. 53/05, whereby the prayer of the plaintiff Raj Kumari Devi, Opposite Party herein, for appointment of Survey Knowing Pleader Commissioner has been allowed. Learned counsel for the petitioners submits that after passing of the decree, the same was put to execution and in the execution case, possession has already been delivered to the plaintiffs - decree holder. Thereafter, a petition has been filed by said Raj Kumari Devi for appointment of Survey Knowing Pleader Commissioner only with a view to harass the defendants -petitioners. Submission is that Plot No. 1340 was not a part of the dispute in Partition Suit No. 88/82 and, as such, it was not in the decree also and that has not been the subject matter of the execution case as well. The opposite party has filed a petition stating therein that Plot No. 1340 was her self - acquired purchased land and in the Execution Case No. 48/2000 though this plot was not the subject matter, still some construction was demolished and possession has been delivered to the plaintiffs. Thus, her contention was that a Survey Knowing Pleader Commissioner should be appointed to survey the disputed plot and also to ascertain the actual facts.

(3.) THE court below on consideration of rival submissions has allowed the prayer in the interest of justice because if the Plot No. 1340 was not a part of the disputed property in the aforesaid partition suit and, if possession has been delivered with regard to this land also, then that will amount to execution of the plot and of an area exceeding what has been decreed.