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.

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 himself that plot no. 330 Bari II with a total area of 2.29 acres and plot no.331 Bari II area 1.23 acres appertaining to jamabandi no.20 of mouza Khoradsah no. 402 are raiyati non-transferable lands recorded in the name of Mani Mahto, Gayani Mahto and Ramcharan Mahto during last Gantzer's Survey settlemment. Jhatu Mahto and Premnath Mahto were full brother of plaintiffs are the descendants great-grand sons of Prem Mahto and grand sons of the recorded raiyat Ramcharan Mahto. Simultaneously the plaintiff has also pleaded that the defendants who are claiming their possession and right, title in the property in question on the basis of the exchange that is also itself illegal.

5. It has been further submitted that in that suit the written statement was filed on behalf of the defendants which is annexure no.2. In this case the evidence of plaintiff had been concluded and the evidence of defendant had commenced. At that stage application was moved on behalf of plaintiff under Order XXVI Rule 9 of CPC for appointing the survey pleader commissioner for the inspection and to report with carving of map according to the present state of plot no. 370 and 385 of Anawadi Khata No.28 of mouza Khoradah 402 (Ward No.35) of Deoghar Nagar Nigam. This application is annexure no.3 of this petition against the same objection were filed by the defendant i.e. annexure no.4.

6. The learned trial court after hearing the rival submission of the learned counsel for both the parties passed the impugned order whereby has allowed the pleader commissioner report. Thus the very order is itself based on perverse finding. No reason has been recorded why the survey commissioner was required for inspection of the property in question.

7. On behalf of respondent the learned counsel Mr. Arvind Kr. Choudhary vehemently opposed the contentions and defended the impugned order.

8. From the very perusal of the application which is annexure no.3 filed by the plaintiff under Order XXVI Rule 9 of CPC it is found that the plaintiff has averred that plaintiff and their family members have been purely cultivator, labourers and completely unaware of the implicacy of the law and after having played fraud and misrepresentation defendant have obtained the ab-initio, illegal and fraudulent order of exchange from the court of SDO, Deoghar. Both under the law and fact any judgment or order obtained by playing fraud or misrepresentation is illegal and void. In the interest of justice and equity both above mentioned plots were sought to be recorded as parti land during last gantzer's survey settlement from the correct and just appreciation of the claims of both the parties the survey commissioner was sought to be appointed.

8.1 From the very perusal of the plaint and the very perusal of the written settlement filed