The court ruled that plaintiffs are responsible for proving their claims in litigation and cannot rely on the court to gather evidence on their behalf, emphasizing the judicial principle of party responsibility in civil proceedings.

JUDGMENT :

ARUN KUMAR JHA, J.

1. The record taken up on mentioning being made on behalf of the petitioners.

2. Heard learned senior counsel appearing on behalf of the petitioners and I intend to dispose of instant petition at the stage of admission itself.

3. The petitioners are aggrieved by the order dated 27.03.2024 passed by the learned Additional District Judge-IV, Saran at Chapra in Title Suit No. 2 of 2020 whereby and whereunder the petition filed by the petitioners under Order 26 Rule 10 (A) of the Code of the Civil Procedure (hereinafter referred to as ‘the Code’) for appointment of Survey Knowing Pleader Commissioner to give report on the points raised in the petition dated 16.02.2023 has been rejected.

4. The learned senior counsel appearing on behalf of the petitioners submits that one of the important issues involved for just adjudication of the dispute between the plaintiffs and defendant is with regard to identity of the suit land as to whether Municipal Plot Nos. 8011 and 8012 have given rise to Holding No. 372/278 (New) carved out from Holding No. 313 (Old) and even before the previous Holding No. 303 at Mohalla- Dahiyawan, Ward No. 17, Circle No. 16, Chapra Town, District- Saran. The learned senior counsel further submits that in every litigation, it should be the endeavour of the court to come to a just and proper decision. If appointment of Survey Knowing Pleader Commissioner would take towards furtherance of ends of justice and to help the court in arriving to a right conclusion, the same ought to be allowed. Moreover, taking evidence at the appellate stage is not barred under the Code. The learned senior counsel further submits that it is case in which relief of declaration of title has been sought and the learned first appellate court rejected the petition on erroneous consideration. Thus, the learned senior counsel submits that the impugned order be set aside and the petition of the petitioners be allowed.

5. I have given my thoughtful consideration to the submission of learned senior counsel appearing on behalf of the petitioners.

6. Order 26 Rule 10 (A) of the Code reads as under :

“10-A. Commission for scientific investigation.—

(1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court.

(2) The provisions of Rule 10 of this Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under Rule 9.”

7. The appointment of Survey Knowing Pleader Commissioner at the appellate stage for identification of property is most uncommon since a duty is cast upon the plaintiff to establish the identity of the suit property as well as his claim with regard to it by his own evidence and the plaintiff or any party could not take the help of the court to gather evidence on his behalf.

8. In the case of Padam Sen and Another Vs. The State of U.P. /b>. AIR 1961 SC 218 , the three Judge Bench of the Hon'ble Supreme Court has held that it is not the business of the Court to collect evidence in favour of one party.

9. Moreover, in the present case, the learned first appellate court in the impugned order has specifically mentioned that in paragraphs 7 & 8 of the memo of appeal, the petitioners/appellants have stated that the land is identifiable with the evidences adduced by the plaintiffs and by moving the applica