Sandeep Kumar, J. – In this case, the petitioner is challenging the order dated 27.07.2018 passed by learned Sub Judge, I, Samastipur in Title Suit No.344 of 2015, by which the prayer of the petitioner for appointment of Survey Knowing Pleader Commissioner has been rejected.

2. The facts of this case, as stated in the writ petition, are that the land bearing Khata No.48, Khesra No.818 belonging to Anil Kumar Mukherjee, Kanhaiya Lal Mukherjee and Mritunjay Kumar Mukherjee, sons of late Nani Gopal Mukherjee, was purchased by the petitioner-original plaintiff and the respondents-original defendants in the year 1979. The petitioner-original plaintiff and the respondent nos. 1, 2 and 3- original defendant 1st party and the respondent no.4-original defendant 2nd party, entered into a contract and accordingly, joint land of all three persons was divided in six plots. From north to south, there is a road measuring 10 feet and 8 inches for the use of all three persons. From southern side, two plots were made for business purposes one to each set of defendants. The defendant 1st party got their share of land in the middle of the road and Bishakha Devi, original defendant 2nd party, got her share of land from southern side of the plot. Accordingly, all three persons constructed their respective houses as per the agreement between them and are residing in their respective houses.

3. It is the case of the petitioner that in the revisional survey, the road measuring 10 feet and 8 inches has been defined as separate plot. Thereafter, the defendants used to create hindrance in using the road allotted to the petitioneroriginal plaintiff, which compelled him to file a suit viz. Title Suit No.344 of 2015. In the title suit, the defendants appeared and filed their joint written statement and challenged the maintainability of the suit on many grounds including the grounds that the plaintiff had intentionally not mentioned the details of the land in question and the entry in the Revisional Survey had been made in collusion with the Government officials.

4. It is also the case of the petitioner that since there were contrary statements regarding the suit land, the plaintiff-petitioner filed a petition dated 16.04.2018 under Order 26 Rule 9 of the Code of Civil Procedure (for short “C.P.C.”) for appointment of Survey Knowing Pleader Commissioner for scientific measurement and for reporting the actual physical features of the land in question. However, by the impugned order dated 27.07.2018 the prayer of the petitioner for appointment of Survey Knowing Pleader Commissioner has been rejected. Hence, this application.

5. Learned counsel for the petitioner submits that the parties have constructed their houses as per their agreement and now the respondent-original defendants are not allowing the petitioner-original plaintiff to use the common road and are also disputing the details of the land furnished by the petitioner, in such a situation, the Court below ought to have appointed the Survey Knowing Pleader Commissioner.

6. Learned counsel for the petitioner further submits that Order 26 Rule 9 of the CPC deals with the appointment of the Survey Knowing Pleader Commissioner and in the present case for deciding the dispute, it is necessary that the Court below should be directed for appointment of Survey Knowing Pleader Commissioner.

7. In support of his submissions, learned counsel for the petitioner has relied upon the following judgments: –

(i) Sita Ram Thakur vs. Nandu Jha & Others reported in 1986 PLJR 527.

(ii) Bijendra Mishra & Others vs. Jagdish Mishra & Others reported in 1989 PLJR 584.

(iii) Ram Shekhar Singh vs. State Bank of India & Ors. reported in 2005(2) PLJR 524.

(iv) Haryana Waqf Board vs. Shanti Sarup & Ors. reported in (2008) 8 SCC 671.

8. Learned counsel for the respondents has supported the impugned order and has submitted that the application filed by the petitioner for appointment of Survey Knowing Pleader Commissioner under Order 26 Rule-9