Back
SUBHASH CHAND
Krishna Mistry @ Krishna Vishwakarma, Son of Nankeshwar Mistray – Appellant
Versus
Baidyanath Prasad Yadav, Son of late Bhim Mahato – Respondent
JUDGMENT :
Subhash Chand, J.
On behalf of petitioners the learned counsel Mr. Prashant Pallav and on behalf of opposite party the learned counsel Mr. Arvind Kr. Choudhary are present.
2. By way of this instant CMP the order dated 09.02.2023 passed by the learned court of Civil Judge (Sr. Division)-III, Deoghar in MCA No. 417 of 2022 arising out of Original Suit NO. 37 of 2019 has been assailed whereby the application under Order XXVI Rule 9 of CPC filed on behalf of the plaintiff has been allowed.
3. The learned counsel for the petitioner has submitted that the Original Suit No. 37 of 2019 was filed on behalf of Baidyanath Pd. Yadav & Ors. against Krishna Mistry & Ors. with the prayer to declare the right, title, interest of the plaintiff over the land in suit and also for recovery of the possession after evicting therefrom the defendants who is illegal and unauthorized occupants. Further the relief for permanent injunction was also sought restraining the defendants claiming any inch of land of the property in suit.
4. In the plaint itself the plaintiff have pleaded in their plaint that the defendants also advanced the fraudulent order of exchange in which the plaintiff has pleaded hims
The court ruled that an application for appointing a survey commissioner must demonstrate necessity, which was not established in this case, leading to the setting aside of the trial court's order.
The party seeking the appointment of a Survey knowing Commissioner under Order XXVI Rule 9 CPC must have made an endeavor to prove their case by leading evidence, and there should be a genuine disput....
The court established that additional evidence cannot be admitted in appellate proceedings if the party had prior opportunities to present it, and that the appointment of a commissioner should not be....
Boundary disputes necessitate the appointment of a local Commissioner for clarity, ensuring courts fulfill the legal requirement of definitive evidence before adjudication.
The appointment of a survey knowing pleader commissioner is not for collecting evidence but to assist the court, and petitioners must prove their case to justify such an appointment.
The appointment of a Civil Court Commissioner under Order XXVI Rule 9 is essential in boundary disputes to ascertain possession and clarify any allegations of encroachment.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
