KALLU SONKAR Vs. STATE OF JHARKHAND AND ORS.

JUDGEMENT

(1.) Aggrieved by order dated 18.5.2015 in Title Suit No. 123/2014, the present writ petition has been filed. The petitioner claiming himself the Secretary of Sri Sri Ram Navmi Dwaja Samity instituted Title Suit No. 123/2014. The suit was admitted on 13.11.2014 and on the allegation that the defendants threatened the plaintiff to demolish the temple, the plaintiff filed petition under Order XXXIX Rules 1 & 2 CPC. The defendants filed written statement denying existence of temple of Lord Mahavira over the suit land and therefore, the plaintiff filed application under Order XXXIX Rule 7 CPC for appointment of a Pleader Commissioner to ascertain the existence of temple over the suit schedule property. The said application has been dismissed vide order dated 18.5.2015.

(2.) The learned counsel for the petitioner submits that once the defendants disputed the existence of the temple over the suit schedule property, it was necessary to ascertain the said fact through a Pleader Commissioner. It has been further submitted that after the defendants threatened the plaintiff that they would demolish the temple, application for injunction was filed. It is contended that the Trial Court should have first appointed a Pleader Commissioner under Order XXXIX Rule 7 CPC for deciding the injunction petition filed by the plaintiff.

(3.) A perusal of application dated 19.2.2015 under Order XXXIX Rule 7 CPC discloses that the petitioner sought appointment of Commissioner to make local investigation as to whether idol of Lord Mahavira has been removed from its original place and shifted to another place in the suit land. The plaintiff filed application for interim injunction on the allegation that the defendants threatened him that they would demolish the temple. However, in application dated 19.2.2015 the plaintiff pleaded that he suspected that the defendants wanted to remove the idol of Lord Mahavira from the suit land. The plaintiff has taken vague stands in both the applications. The Trial Court has observed that local investigation through a Pleader Commissioner cannot be ordered for collecting evidence in the suit. In view of the specific assertion of the plaintiff that at the time of institution of the suit, the temple of Lord Mahavira existed over the suit property, I am of the opinion that it is for the plaintiff to lead evidence to establish the said fact. The plea of the plaintiff that the Pleader Commissioner should ascertain whether the temple has been demolished or not and the idol of Lord Mahavira has been shifted or not, cannot be accepted. Considering the above facts, I find no error in the impugned order dated 18.5.2015 and accordingly, the writ petition is dismissed.