NARAYAN Vs. HEERALAL

JUDGEMENT

(1.) THE petitioner -plaintiff is aggrieved by the order dated 15.9.2011 passed by the Additional District & Sessions Judge No. 1, Sikar whereby the learned Judge has rejected the petitioner's application under Order 26, Rule 9 CPC for appointment of Commissioner.

(2.) MR . Kamal Kumar Mathur, the learned counsel for the petitioner, has vehemently contended that there were two suits filed by the petitioner -plaintiff against the respondents -defendants. While in the present suit the defendant has clearly denied the factum of partition of the property in dispute, in the other suit he has admitted the partition. Thus, in order to know the exact share which fell to each of the parties, it was imperative that a commissioner be appointed.

(3.) ON the other hand, Mr. Amit Singh Shekhawat, the learned counsel for the respondents, has contended that since the factum of partition has been denied by the defendants, in this suit, an issue would have to be framed with regard to the question whether partition did take place within the family or not? Thus, it is for the plaintiff to prove the fact that the partition did take place in accordance with law. Therefore, a commissioner could not be appointed in order to create evidence which may be in favour of the plaintiff. After all, the plaintiff has to prove his case on his own strength. According to the learned counsel, this is the precise reason given by the learned Judge for dismissing the application. Therefore, according to him, the impugned order does not deserve to be interfered with.