The main legal point established in the judgment is the importance of appointing a Pleader Commissioner for local investigation to elucidate any matter in dispute and to ascertain the actual state of affairs between the parties, especially in cases of encroachment and disputed possession of property.

1. Heard leaned counsel for the petitioners and learned counsel for the respondents.

2. The petitioners have challenged the order dated 13.6.2007 passed by the Sub-Judge IV, Patna in Title Suit No. 273 of 1996, whereby and whereunder the court below has refused to appoint survey knowing Pleader Commissioner to make proper scientific measurement of the suit land on two grounds i.e. (i) earlier the petition filed by the petitioners was rejected which was not challenged by them before the higher court and (ii) on the ground of delay as the petition has been filed at argument stage.

3. As it appears from the record that the original land holder was one Dr. Dilip kumar Pal and in whose name plot no. 135, total area of 17 Katha and 14 Dhurs of land had been recorded in the cadastral survey. The dimension of plot was 94’.4” on the North, 103’.0” on South, 276’.6” on East and 234’.4” on West. Dr. Dilip Kumar Pal sold 3 Katha and 8 Dhurs of land having dimension of 46’.0” on the northern side from east to West, 50’.4” on the Southern side from East to West, 100’.9” both on Eastern and Western side in favour of Dr. Braj Nandan Sahay defendant Ist set and Ahilya Sahay. On the same day Dr. Pal had also executed the sale deed to Tetar Devi, the ancestors of defendants 2nd party having dimension of 48’6” on the Northern side from East to West, 44’.2” on the southern side from East to West side and 109’.9” both on East and West and later on Dr. Pal had entered into an agreement to sale for 10 Katha and 14 Dhurs of land with Manju Jalan and Sangeeta Devi Tibrawalla on 11.9.1989. The plaintiffs are attorney holder from Dr. Pal with respect to the suit land for various purposes. The dispute arose with regard to occupation of land as from the side of the petitioners it was stated that the land was encroached by the defendants side which was disputed by them.

4. In this case only limited issue has been raised with regard to appointment of survey knowing Pleader Commissioner to make proper scientific measurement of the suit land with regard to the alleged encroachment by the defendants.

5. For the first time the petitioners had filed a petition for appointment of survey knowing Pleader Commissioner for physical verification of the land which was rejected vide order dated 9.2.2001 and the court has held that at the present stage it would not be proper to make scientific measurement by appointing survey knowing Pleader Commissioner. That was stage of taking evidences of respective parties.

6. After closure of evidence from both sides at the argument stage an application dated 28.5.2007 was filed under Order XXVI, Rule 10(A) read with Section 151 of the Code of Civil Procedure for appointment of survey knowing Pleader Commissioner with regard to make proper scientific measurement of the suit land on the ground that there was illegal encroachment by the defendants. The court below has rejected the claim of the petitioners on the first ground that he has not challenged the earlier order and at the same time it has been filed at a very belated stage.

7. Learned counsel for the petitioners submits that the court has rightly rejected the petition on 9.2.2001 as it was not a proper stage for the appointment of the Pleader Commissioner as at the relevant time the evidences was yet to be recorded from both sides and wrongly refused to exercise in appointing survey knowing Pleader Commissioner for that he has relied on the following judgments:

(i) Payani Achuthan Vs. Chamballikundu Harijan Fisheries Development Co-operative Society and others, A.I.R. 1996 Kerala 276

(ii) Vaithinattar and another vs. Sakkubal Ammal, A.I.R. 2004 Madras 419

(iii) Ponnusamy Pandaram Vs. The Salem Vaiyappamalai Jangamar Sangam, A.I.R. 1986 Madras 33

(iv) A.I.R. 1952 Karnataka 233

(v) Vencu Gopal Tari and others Vs. Nilconta S. Xete and others, A.I.R. 1975 Goa, Daman and Diu 32

(vi) Mt. Saraswati Bahuria Vs. Suraj Narain Chaudhuri, A.I