VIJAY KUMAR SHASTRI Vs. PRATIBHA SINGH

JUDGEMENT

(1.) Aggrieved of order dated 18.02.2017 passed in Title Suit No. 520 of 2012 by which an application for appointment of Pleader Commissioner has been allowed, the petitioner has preferred the present writ petition.

(2.) Title Suit No. 520 of 2012 was instituted by Pratibha Singh for a decree of declaration of her right, title and interest over the Schedule 'C' land and for delivering Khas possession of Schedule 'C' land after ejecting the defendant from the suit property. The plaintiff has claimed that in the year 1955, one Bibi Dulhin @ Rahiman Bibi sold and transferred the land comprised in R.S. Plot No. 595 to one Ranjit Kumar Sinha on valuable consideration through a registered sale deed, where after the purchaser came in Khas possession over the suit land. The plaintiff has claimed that by virtue of registered sale deed dated 21.06.1975 she purchased 9 decimals of land in sub-Plot No. 595/II from Plot No. 595, Khata No. 9, Khewat No. 8 out of total area of 2.44 acres. The said land is situated at village-Hinoo, P.S.-Doranda, District-Ranchi. The plaintiff claims another purchase on 11.06.1976 of 11 Kathas 3 Chattak land through a registered sale deed. This land is Schedule 'B' land. The respondent contested the suit by pleading that by virtue of a sale deed executed in the year 1955 Ranjit Kumar Sinha never came in possession of the land comprised therein rather, the defendant was in possession of the property comprised in sub-Plot No. 595/I at village-Hinoo and constructed a building known as 'White House' which remained in possession of late Gajendra Singh Shastri. The defendant resisted the claim of the plaintiff for declaration of title on the ground that after lapse of 55 years the plaintiff cannot raise a claim over 15 x 114 sq. ft. land which is in defendant's possession. During the trial the parties led their evidence and when the suit was fixed for final argument, an application dated 04.10.2016 was filed under Order 26, Rule 9 C.P.C for appointment of a survey knowing Pleader Commissioner which has been allowed by the impugned order dated 18.02.2017.

(3.) Title Suit No. 520 of 2012 is primarily a suit seeking declaration of the plaintiff's right, title and interest. The relief sought by the plaintiff seeking delivering of Khas possession of Schedule 'C' land is dependent on declaration of the plaintiff's right, title and interest by the Court. The suit schedule lands contain boundaries and the parties have led evidence on this issue during trial of Title Suit No. 520 of 2012. At this stage on the ground that for elucidating any matter or for ascertaining any other matter, local inspection as envisaged under Order 26, Rule 9 C.P.C can be ordered, more particularly to elucidate the matter in controversy by measuring Plot No. 595(1), in my opinion, was an error committed by the trial court while exercising its jurisdiction conferred under Order 26, Rule 9 C.P.C. Necessity for measurement of sub-Plot No. 595/I may arise only at the time of execution and not before that. Without declaring right, title and interest of the plaintiff, delivery of possession of the disputed Schedule 'C' land cannot be delivered to the plaintiff. Reliance on Kisanlal Maniklal Rathi v. Dinkar Yashwant Patil reported in [2004 (16) AIC 230 (BOM.,H.C.-N.B.)] is not tenable, for the facts in the said case are entirely different from the facts disclosed in Title Suit No. 520 of 2012. The learned counsel for the respondent has also relied on the decision in A.C. Ananthaswamy v. A.R. Chandrappa and Another reported in [2015(151) AIC 373 (Kant., H.C.)]. Reference by the learned counsel for the respondent in Gobind Sahu v. Baijnath Sahu and Others reported in [2011 (3) JCR 107 (Jhr)], does not further the case of the respondent in supporting the impugned order dated 18.02.2017.