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2025 Supreme(Jhk) 1450
IN THE HIGH COURT OF JHARKHAND AT RANCHI
GAUTAM KUMAR CHOUDHARY, J.
Sujit Kumar Singh son of Krityanand Singh - Petitioners
Versus
Smt. Ritu Devi, wife of Sri Mrigendra Singh - Opposite Parties
C.M.P. No. 330 of 2024
Decided On : 15-10-2025
Advocate Appeared:
For the Petitioners:Mr. Rohit Roy, Advocate Mr. Tarun Kumar Mahato, Advocate Mr. Vibhor Mayank, Advocate Mr. Shubham Kumar, Advocate Mr. Roshan Kumar Singh, Advocate
For the O.P. No.1 :Mr. Lukesh Kumar, Advocate For the O.P. No.2:Mr. Jai Shankar Tripathi, Advocate Mr. Amandeep Kumar Pandey, Advocate
The appointment of a Survey Knowing Pleader Commissioner before issue framing in a civil suit is premature and hinders effective fact finding, focusing on the necessity of clarity and evidence in property disputes.
Headnote:(A) Code of Civil Procedure, 1908 - Order XXVI Rule 9 - Appointment of Survey Knowing Pleader Commissioner - Commissioner's appointment is meant to assist the Court in elucidating unclear factual matters; it should not be done prematurely before issue framing. - In this case, the appointment was made without issues being framed, which does not align with the procedural purpose. (Paras 12-14)
(B) Easementary Rights - The plaintiff's claim for easementary rights is scrutinized against purchase timelines and specificity of claims made in the plaint. The Court emphasized that a party must substantiate their claim through evidence of title before encroachment can be established. (Paras 7, 15)
Facts of the case:
This petition was filed by the defendants to challenge the preemptive appointment of a Survey Knowing Pleader Commissioner regarding property measurements, where claims of encroachment by defendants were at issue. The plaintiff asserted rights over land purchased through a registered sale deed but was challenged by the defendants' claims of ownership.
Findings of Court:
The Court found that the appointment of the commissioner prior to framing of issues was premature and unnecessary, hindering effective fact clarification.
Issues: The key issues involved whether the appointment of a commissioner before issues were framed was valid and the legitimacy of the claims regarding easementary rights.
Ratio Decidendi: The Court ruled that while appointing a commissioner can assist in understanding disputes regarding property, it should not be conducted at a stage where facts are not yet established through evidence.
Result: Civil Miscellaneous Petition is allowed; the impugned order is set aside.
| Table of Content |
|---|
| 1. dispute over property rights and boundaries. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. arguments concerning the appointment of the commissioner. (Para 8 , 9 , 10) |
| 3. court's observations on the appropriateness of the commissioner's appointment. (Para 11 , 12 , 13 , 14 , 15) |
| 4. order to set aside the commissioner's appointment. (Para 16) |
JUDGMENT :
GAUTAM KUMAR CHOUDHARY, J.
1. Instant civil miscellaneous petition has been filed by defendant nos.2 and 3 for setting aside the order dated 09.01.2024 passed in O.S. No.2268/2020 by which Survey Knowing Pleader Commissioner has been appointed for : -
I. Measurement of area of property in Schedule B i.e. purchased vide registered Sale Deed No.6108/5259 dated 25.06.2015.
II. Measurement of area of property mentioned in Schedule C.
III. Whether any construction has been made on Schedule C property by the defendants?
2. Plaintiff filed the suit for the following reliefs: -
A. Decree for declaration of plaintiff’s right, title and interest over Schedule C land and for a further declaration that the defendants have not acquired right, title or interest over Schedule C land.
B. A decree for recovery of possession with direction to the defendants to remove the wall, structures, etc. from Schedule C land and restore the possession over Schedule C land.
C. A decree for permanent injunction against the defendants restraining them from raising any structure or create any obstruction on Schedule C land.
3. Plaintiff claims to have acquired right, title and interest over Schedule B land measuring an area 2.5 Katha or 4.13 decimals by virtue of registered Sale Deed No.6108/5259 executed on 25.06.2015 from Rita Raha and Saswat Raha.
4. It is admitted by the plaintiff in para 8 of the plaint that defendant no.2- Ranjana Singh purchased second portion (leaving the stretch of 4 ft. wide x 61 ft. long adjacent to the Schedule B land) from defendant no.1 vide registered Sale Deed No.5531/5096 dated 27.07.2018 for an area measuring 2.34 Katha or 3.87 decimals over which the constructed house stands in the land.
5. It is claimed by the plaintiff that Schedule C constituted part of the land purchased by them and was left on the southern portion as passage.
6. The main case of the plaintiff is that defendants have encroached over Schedule C land making construction for which the suit has been filed. 7. It is argued by the learned counsel on behalf of the petitioners/defendants that Schedule C land was not purchased by the plaintiff which will be evident from para 5 of the plaint. The claim is rather based on easementary right as asserted in para 11 of the plaint.
8. Furthermore, defendant no.1 who is the coparcener of the vendor of the plaintiff, has already filed a written statement making specific averment Schedule C land was not sold by defendant no.1 to the plaintiff nor did she ever agreed to sell that portion to the plaintiff.
9. It is further argued that Survey Knowing Pleader Commissioner cannot be appointed for collection of evidence on behalf of the other side. Here in the present case, when even issue has not been framed, Survey Knowing Pleader Commissioner has been appointed for measurement of Schedule property. It is submitted that the easementary right cannot be claimed by the plaintiff as she is purchaser of the land as on 2015 and at no point of time such a claim has been asserted by her within 20 years in view of the ratio laid down by the Apex Court in Manisha Mahendera Gala & Others Vs. Shalini Bhagwan Avatramani & Others, (2024) 6 SCC 130 .
10. It is submitted by the learned counsel on behalf of the plaintiff/opposite parties that appointment of Survey Knowing Pleader Commissioner has been made for physical verification of the area purchased by the plaintiff and not of the defendants. Learned counsel has relied on a decision in the case of Ram Sanjiwan Choudhary Vs. Arun Kumar Rai & Others, 2023 Supreme (Pat) 1403, wherein it has been held that Survey Knowing Pleader Commissioner can be appointed f
