The appointment of a Pleader Commissioner under CPC Order XXVI is not for collecting evidence but for elucidating disputes, and must be justified by judicial satisfaction regarding necessity.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

Heard learned counsel appearing for the petitioners and learned counsel appearing for the sole opposite party.

2. This petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 25.05.2022 passed by learned Munsif, Koderma in Title Suit No.74 of 2015, whereby the application filed by the respondent/plaintiff under Order XXVI Rule 9 and 10A of Code of Civil Procedure for appointment of Survey Knowing Pleader Commissioner for measurement of suit land has been allowed.

3. Learned counsel appearing for the petitioners submits that late Gurudeo Ram Mahuri himself acquired land in his own name and in the name of his son Bhagwati Prasad Mahuri situated in Khewat No.02, Plot No.3336/3508 area 0.40 acres bounded North-Rasta, South-Rasta, East- House of Ladumal, West – Parti Kadim of Mouza – Tilaiya, P.S. No.244, through registered deed of sale being deed No.68, dated 14.01.1933 from vendor Babu Laxmi Narain Sukhani and came in continuous possession. He submits that Late Gurudeo Ram Mahuri had five sons and one of the son namely Ram Pratap Lohani has preferred a Title Suit being Title Suit No.74 of 2015 before the learned Munsif, Koderma for declaration of Title over the suit land and confirmation of his possession over the same and for direction upon the petitioners to remove the constructions made by them on the suit land. He further submits that earlier Partition Suit No.02 of 1967 was filed by legal heirs of late Gurudeo Ram Mahuri for partition of land between the legal heirs and against the order of Title Suit, Tara Devi and others preferred First Appeal being FA No.560 of 1973 before Hon’ble Patna High Court where the matter was compromised between the parties and decree was passed on the basis of compromise. He submits in view of the compromise petition, the plaintiff is already knowing the area in spite of that the said application under Order-XXVI Rule 9 and 10-A has been filed which is erroneous. He submits by way of appointment of the Pleader Commissioner, the plaintiff of that case is trying to make out his case in the pending suit.

4. Learned counsel appearing for the sole opposite party submits that if any doubt is there the Court is having the jurisdiction to appoint the Pleader Commissioner and the learned Court looking into the provision of Order 26 Rule 9 has come to the said conclusion and thereafter has appointed the Pleader Commissioner and there is no illegality in the order.

5. It is an admitted position that earlier the Partition Suit No.02 of 1967 was filed and decree was passed in favour of the legal heirs/successors in which F.A. No.560 of 1973 was preferred before the Patna High Court in which the compromise was made and decree was passed on the basis of compromise. Thus, it is crystal clear that the area is already defined to the contesting parties on the basis of the compromise and if such a situation is there the plaintiff is knowing his area in spite of that he has filed the petition under Order XXVI Rules 9 and 10A of CPC which is quoted here-in-below:-

Order XXVI Commissions Rule 9. Commissions to make local investigations. —In any suit in which the Court deems a local investigation to be requisite or proper for the purpose 17 CMP No.1117/2023 of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.

Rule 10A. Commission for scientific investigation —

(1)Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thin