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Judgement Reserved on 17.08.2021

Delivered on 15.09.2021

Court No. - 4

Case :- MATTERS UNDER ARTICLE 227 No. - 3216 of 2021

Petitioner :- Satiram

Respondent :- Pramod Kumar Pandey And 4 Others

Counsel for Petitioner :- Sheetala Prasad Pandey

Counsel for Respondent :- Uma Nath Pandey,Uma Nath

Hon'ble Prakash Padia,J.

1.

Heard Sri Sheetala Prasad Pandey, learned counsel for the petitioner

and Sri Uma Nath Pandey, learned counsel for the respondent Nos.1 and 3.

2.

The petitioner has preferred the pesent petition inter-alia with the

prayer to set aside the order dated 17.03.2021 passed by the Additional

District Judge/F.T.C. II Basti in Civil Appeal No.81 of 2014 (Keshav Ram

Vs. Chandrika Prasad). A further prayer has been made to direct the

appellate court to get a fresh commissioner report pursuant to the

application being Application No.34Ga2 submitted by the petitioner.

3.

Facts in brief as contained in the petition are that the predecessor-

in-interest of plaintiff-petitioner has filed an injunction suit before the

Court of Munsif Basti against the predecessor-in-interest of the defendant-

respondent. The said suit was registered as Original Suit No.346 of 1979

(Keshav Ram Vs. Chandrika Prasad). The aforesaid suit was dismissed by

the Munsif Basti. Aggrieved against the aforesaid order, a Civil Appeal

No.153 of 1982 has been filed which was allowed by the District Judge

Basti vide its order dated 23.02.1984. By the aforesaid order, the matter

was remitted back to the trial Court with the direction to get fresh

Commissioner Report regarding the position of the house and other

things. On 14.05.1984, the father of the petitioner submitted an

application in the Court of Munsif Basti with the request to get the

Commissioner Report on the points mentioned in the application.

Thereafter, one Sri Gulab Singh Advocate has been appointed as Advocate

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Commissioner who submitted his report on 11.01.1985. Being not

satisfied with the aforesaid report, the plaintiff-petitioner submitted

another application to appoint another Commissioner and get a fresh

report. Pursuant to the same, the Trial Court appointed one Sri Narendra

Pal Advocate as (Special Commissioner) and sought clarification on some

points. Sri Narendra Pal (Special Commissioner) submitted its report on

16.11.2011. Against the aforesaid report, the petitioner submitted his

objection in the Court of Munsif Basti. It is argued that ignoring the

objection raised by the plaintiff-petitioner against the aforesaid report, the

suit was itself decided by the Civil Judge (Junior Division) on

30.09.2014. By the aforesaid judgement and decree, the suit filed by the

plaintiff-petitioner as well as counter claim of the defendant/respondent

partly allowed. Against the aforesaid judgement and decree dated

30.09.2014, the predecessor-in-interest of the plaintiff-petitioner filed an

appeal in the Court of District Judge, Basti in the year, 2014. After expiry

of five years, the plaintiff-petitioner and the proforma respondent-

defendant filed an application being Application No.34Ga2 on 26.09.2019

with a request to appoint another Amin/Commissioner and get the fresh

report because the whole case is based on the possession. The aforesaid

application was rejected by the Additional District Judge/F.T.C. II Basti

vide its judgement and order dated 17.03.2021. Aggrieved with the

aforesaid order, the plaintiff-petitioner filed the present petition.

4.

It is argued by learned counsel for the petitioner that the order

passed by the Appellate Court is unjust, improper and against the settled

provisions of law and as such, the same shall be liable to be set aside. It is

argued that the Appellate Court is fully empowered to issue commission

for survey whe