IMPORTANT POINT
The court established that the appointment of a commissioner under Order XXVI Rule 9 of the CPC is not to be used as a means to collect evidence after the closure of proceedings, and such applications must be made at an appropriate stage to avoid disrupting the trial process.

ORDER :

SUJIT NARAYAN PRASAD, J.

1. The instant Civil Miscellaneous Petition has been preferred under Article 227 of the Constitution of India, for setting aside the order dated 15.06.2023 passed in Title Suit No. 42 of 2008 by learned Senior Civil Judge-IV, Dumka, whereby and where under the petition dated 11.05.2023 filed by the plaintiffs (petitioners herein) under Order XXVI Rule 9 and 10 of Code of Civil Procedure (here in after to be referred as C.P.C), for appointment of Survey pleader Commissioner in order to measure the plots in dispute, has been rejected.

Brief facts of the case:

2. It is the case of the petitioners, as per the pleading made in the instant petition, that the plaintiffs (petitioners herein) being the grandsons of the recorded tenants of the disputed plots in question, have filed the T.S. No. 42 of 2008 for declaration that the lands appertaining to Jamabandi No. 43 of Mc Pherson Settlement of Mauza Rasikpur, being Plot no. 431, 432, 437, 438 and 439 having a total area measuring 1 Bigha 13 Kattha 8 Dhur, are the ancestral property of the plaintiffs which are recorded in the names of Pran Mahto, and Jhagru Mahto. It is stated that the defendants (respondent herein) with a view to grab the schedule property have begun encroachment by illegal construction of boundary wall over it, in the garb of a sale deed no. 171 of 1940, wherein there is no Plot number mentioned and as such are trying to dispossess the plaintiffs.

3. It is further stated that the defendants had filed written statement in aforesaid title suit being T.S. No. 42 of 2008 and the case of the defendants is that the defendants are claiming right over Plot nos. 437 and 438 of Mouza Rasikpur by way of sale deed executed by the Ex- landlord of Mouza Rasikpur in their favour in the year 1940 and hence the defendants are constructing boundary wall on the above-mentioned plots, as such, the claim of encroachment upon the lands of the plaintiffs are denied.

4. The suit proceeded and the documents were exhibited form both the sides. It is the case of the plaintiffs that during the course of hearing, it transpired from paragraph 13 of the written statement as well as from the sale deed (Exhibit D), the defendants have admitted that the plots claimed by them are 437 and 438 are not mentioned in the Sale Deed no. 171/1940 nor Jamabandi number is mentioned but have stated the measurements of both the plots being 01 Bigha 13 Katha 5 Dhurs in total. However, the defendants in support of their claim, brought on record Purcha of JB No. 106 of Mouza Rasikpur No. 2 issued during Gantzer Settlement (Being Exhibit 'O') wherein the total area of Plot No. 437 is 3 Bigha, 1 Kattha and 2 Dhur and of Plot no. 438 is 1 Bigha, 10 Kattha and 17 Dhur respectively.

5. To eradicate the aforesaid anomaly, the plaintiffs filed a petition dated 11.05.2023 under Order XXVI Rule 9 and 10 of the Civil Procedure Code for appointment of Survey Commissioner for measurement of disputed plots for elucidating the matter in dispute.

6. The trial Court, after hearing the parties, has passed order on 15.06.2023 rejecting the claim of the plaintiff on the ground that it won't be expedient in the interest of justice at the late stage of final argument to re-verify it by measuring each plot by issuing commission.

7. Hence, the present petition.

Submission of the learned counsel for the petitioners

8. The learned counsel appearing for the petitioners assailing the order impugned, as bad in law, contended that from bare perusal of Order-XXVI Rule-9 of the Code it would appear that Pleader Commissioner can be appointed at any stage of the suit, but the court below without considering the provisions of law erred in rejecting the said petition merely on the ground that at this belated stage such petition cannot be allowed.

9. It has further been submitted that it is well settled that the petition under Order XXVI Rule 9/10 is not “stage-centric.” The said provision can be invoked either before the commence