MOTI MAHTO Vs. ASHIM KR. DEY

JUDGEMENT

(1.) The instant Civil Miscellaneous Petition has been preferred under Article 227 of the Constitution of India, for setting aside the order dtd. 15/6/2023 passed in Title Suit No. 42 of 2008 by learned Senior Civil Judge -IV, Dumka, whereby and where under the petition dtd. 11/5/2023 filed by the plaintiffs (petitioners herein) under Order XXVI Rule 9 and 10 of Code of Civil Procedure (here in after to be referred as C.P.C), for appointment of Survey pleader Commissioner in order to measure the plots in dispute, has been rejected. Brief facts of the case:

(2.) It is the case of the petitioners, as per the pleading made in the instant petition, that the plaintiffs (petitioners herein) being the grandsons of the recorded tenants of the disputed plots in question, have filed the T.S. No. 42 of 2008 for declaration that the lands appertaining to Jamabandi No. 43 of Mc Pherson Settlement of Mauza Rasikpur, being Plot no. 431, 432, 437, 438 and 439 having a total area measuring 1 Bigha 13 Kattha 8 Dhur, are the ancestral property of the plaintiffs which are recorded in the names of Pran Mahto, and Jhagru Mahto. It is stated that the defendants (respondent herein) with a view to grab the schedule property have begun encroachment by illegal construction of boundary wall over it, in the garb of a sale deed no.171 of 1940, wherein there is no Plot number mentioned and as such are trying to dispossess the plaintiffs.

(3.) It is further stated that the defendants had filed written statement in aforesaid title suit being T.S. No. 42 of 2008 and the case of the defendants is that the defendants are claiming right over Plot nos. 437 and 438 of Mouza Rasikpur by way of sale deed executed by the Ex- landlord of Mouza Rasikpur in their favour in the year 1940 and hence the defendants are constructing boundary wall on the above-mentioned plots, as such, the claim of encroachment upon the lands of the plaintiffs are denied.