GHANSHYAM MANDAL Vs. NAND LAL MANDAL

JUDGEMENT

(1.) The petitioner, who is the plaintiff in Title Suit No. 101 of 2014, is aggrieved of order dated 09.08.2016 by which his application under Order XXVI Rule 9 CPC has been rejected.

(2.) Briefly stated, Title Suit No. 101 of 2014 has been instituted for a decree for declaration of the plaintiff's right, title, interest and possession over the suit land. Though it is not an alternative prayer, the plaintiff has also prayed for recovery of possession of the suit land through the process of the Court. Another relief sought in the plaint is for restraining the defendants and their agents/representatives from selling the suit land. Before the suit proceeded under Order X CPC, an application under Order XXVI Rule 9 CPC was filed by the plaintiff for appointment of a Survey Knowing Pleader Commissioner on an allegation that the defendants have been trying to encroach upon the suit land as a result of which passage of the plaintiff as well as the general public has been obstructed. In paragraph no. 4 of the application dated 17.04.2015, the plaintiff has asserted that the defendants are ready to sell the suit land which is in his possession.

(3.) Mr. Anil Kumar Sinha, the learned counsel for the petitioner submits that in view of the plaint averments and the allegation in the application under Order XXVI Rule 9 CPC, it was necessary to ascertain the factual status of the suit land.