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1994 Supreme(Gau) 195
GAUHATI HIGH COURT
M.Sharma, J.
On The Death of Chouthmal Jalan Legal Heirs Namely Smti Ratna Devi Jalan -Appellant
Versus
Pramila Paul and Another -Respondent
Civil Revision No. 305 of 1991
Decided On : 30-09-1994
B.K.Jain , A.Sattar, N.Chakraborty, S.K.Kaul , D.K.Bhatra, S.S.Sharma
The appointment of an Amin Commissioner to measure land for encroachment is a process precedent for amending the plaint.
Headnote:
Amin Commissioner - Land Encroachment - The court held that the appointment of an Amin Commissioner to measure the land for encroachment was a process precedent for amending the plaint, and the trial court's failure to consider this and the pending petition under Order 39 Rule 2A constituted material irregularity.
Fact of the Case:
The plaintiff filed a suit for declaration and permanent injunction against the defendants, alleging encroachment on their land and seeking to restrain the defendants from further encroachment.
Finding of the Court:
The court found that the trial court did not act within its jurisdiction and acted illegally with material irregularity by rejecting the petition for appointment of an Amin Commissioner and not considering the pending petition under Order 39 Rule 2A.
Issues: The issues involved the alleged encroachment on the plaintiff's land, the petition for appointment of an Amin Commissioner, and the trial court's handling of the petitions.
Ratio Decidendi: The appointment of an Amin Commissioner to measure the land for encroachment was a process precedent for amending the plaint, and the trial court's failure to consider this and the pending petition under Order 39 Rule 2A constituted material irregularity.
Final Decision: The impugned order was set aside, and the title suit was directed to be disposed of within two months from receipt of the order.
2. Original plaintiff, late Chouthmal Jalan filed the above mentioned suit for declaration and permanent injunction against the opposite parties.
3. The case of the petitioners/plaintiffs is that they and the opposite parties have plots of land which are contiguous to each other and that the land under occupation of the defendant/opposite parties is on the north side of the petitioners' land and the petitioners have been enjoying uninterrupted flow of light and air from the north for 50 years or more; that except brick wall on some part, the rest of the boundary between the petitioners and the opposite parties are not demarcated, that the opposite parties are intending to raise construction in such a manner that the flow of light and air to the premises of the plaintiff will be blocked and interrupted. The petitioners' further apprehension is that the opposite parties may encroach upon their land by using the construction and that may already have encroached upon some of their land. Therefore, petitioners prayed for permanent injunction for restraining the opposite parties from encroaching upon the land of the petitioners described in the Schedule. Along with the plaint petitioners also filed application for temporary injunction. During the proceeding a compromise was effected before the parties (Ref. No. 880/86) and accordingly opposite parties were allowed to evict temporary wooden wall without touching the boundary line subject to the final order of the suit. Allegation has been raised by the petitioner that the terms of the consent order was violated by the opposite parties by encroaching upon the land of the petitioners and accordingly an application was filed under Order 39 Rule 2A.
4. On 7.6.91 the petitioners filed a petition being petition No. 883/91 under Order 2$ Rule 9 read with section 151 of CPC for appointment of the Amin Commissioner to measure the land of the petitioner indicated in the Schedule of the plaint in order to ascertain the extent of encroachment made by the opposite parties and to give report to the Court. The said petition was preferred as the opposite parties raised alleged construction upon the boundary land of the petitioners on the northern side of his land. This petition was objected by the opposite parties. Further contention of the petitioners is that the trial Court without disposing the petition under Order 26 Rule 9 wanted to proceed with the hearing of the suit and consequently petitioner had to file an application for adjournment stating inter alia that, in that case the petition filed earlier under Order 39 Rule 2A for willful violation of the Courts order dated 30.8.86 which was pending for disposal since 1986.
5. The trial Court rejected the petition filed under Order 26 Rule 9 instantly and in the same order, it allowed the adjournment petition imposing a cost of Rs.500/- for taking adjournments, making it a condition precedent to pay the cost for further prosecution failing which, it was ordered, petitioners would be debarred from further proceedings. Petitioners deposited the amount under protest with a prayer not to disburse the amount to the opposite parties/defendants.
6. From the above discussion, it appears that in the plaint itself, the petitioner kept an option to make prayer for Amin Commission in due process. I read the plaint of the Title Suit No. 37 of 1986 wherein para 8 of the plaint the averment was that at the appropriate time petition for appointment of Amin Commissioner would be filed. In the petition under Order 26 Rule 9 it was also submitted that there was no other alternative mode or means to ascertain the actual area of encroachment.
7. Mr. N. Chakravarty learned senior counsel for the opposite parties has submitted that without amending the plaint petitioner cannot claim for appointment of Amin Commissioner. This submiss
