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.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

Heard Mr. Jai Prakash, learned senior counsel appearing for the petitioners and Mr. Sandeep Verma, learned counsel appearing for the O.P. No. 1.

2. Ms. Priyanka Bobby, A.C. to Mr. G.K. Sinha, learned counsel submit that the O.P. Nos. 2 and 3 have taken No Objection from her office, in view of that she is not in a position to argue the matter on their behalf.

3. This petition has been filed under Article 227 of the Constitution of India , wherein prayer is made for setting aside the order dated 05.03.2024, passed by the Principal District Judge, Lohardaga, in Civil Appeal No. 05 of 2022, whereby, the petition filed under Order- XXVI Rules-9 and 10 read with Section 151 of the CPC has been rejected by the learned court.

4. Mr. Jai Prakash, learned senior counsel appearing for the petitioners submits that the plaintiffs/petitioners instituted original Title Suit No.08/2015 against the defendants /respondents before the learned Court of Munsif, Lohardaga. The case of Plaintiffs/Petitioners in short is that lands of R.S. Khata 173, Plot No.630, Area 3 decimals and Plot No.640, Area 59 decimals, out of total area 62 decimals situated at village Nigni, Plot No.144, P.S. & District-Lohardaga, stands recorded in the names of Sheikh Maru & Sheikh Nuran S/O Chirku as Kaimi. He submits that the said suit was decided by the judgment dated 06.04.2022, which was challenged by the plaintiffs-petitioners in Civil Appeal No. 05 of 2022, which is still pending. He further submits that R.S. Khata No.173, R.S. Plot no.640, Area 59 decimals corresponds to new Khata No.182 and new plot No. 722, but the area shown is only 55 decimal and the remaining area of 5 decimals has been amalgamated with new plot No.704 under new survey Khata No.534 which also belongs to plaintiffs/petitioners. He submits that in view of the above, a petition under Order-XXVI Rules-9 and 10 read with Section 151 of the CPC has been filed, which has been rejected by the learned court on the erroneous ground saying that at the appellate stage, the said petition is not maintainable for appointment of the survey knowing pleader commissioner.

5. Learned senior counsel submits that the Code of Civil Procedure is meant for doing the complete justice and to buttress his argument, he relied on the case of Anurag Jaiswal Versus Collector, Khandwa & Ors. in M.P. No. 4408 of 2018 [Madhya Pradesh High Court]. Relying on this judgment, he submits that in this judgment, this aspect of the matter has been considered and in para-13, it has been held that if the boundary is in dispute, the said petition is required to be allowed by the learned court. On these grounds, he submits that the impugned order may kindly be set aside and the petition filed by the petitioners may kindly be allowed for appointment of survey knowing pleader commissioner.

6. Mr. Sandeep Verma, learned counsel appearing for the O.P. No. 1 has opposed the prayer and submits that there is no dispute with regard to the boundary of suit land and to buttress his argument, he refers to the Schedule of the plaint. He submits that the said suit is already dismissed and at the appellate stage, the said petition has been filed only to lead evidence in the garb of survey knowing pleader commissioner. On these grounds, he submits that this petition may kindly be dismissed.

7. It is an admitted position that the suit instituted by the plaintiffs/petitioners has been dismissed by the learned court by the judgment dated 06.04.2022, which was challenged before the leaned appellate court and on the basis of amalgamation of new plot No.704 under new survey Khata No.534, a petition under Order-XXVI Rules-9 and 10 read with Section 151 of the CPC has been filed, which has been rejected by the learned appellate court. Meaning thereby, the plaintiffs/petitioners have not been able to prove their case before the learned trial court and at the appellate stage, the said petition has been filed for appointment of survey k