IN THE HIGH COURT OF JHARKHAND AT RANCHI Marsella Ekka @ Marcela Toppo, aged about 42 years, W/o Shree Dashrath Ekka, resident of Village Gorkho, P.O. Murkoni, P.S. Mandar, District- Ranchi … Petitioner -Versus-

Sukhmani Devi @ Sukhmani Orain, aged about 56 years, W/o Bishwanath Orain, resident of Village- Kanjiya, Kathchocho, P.O. & P.S. Mandar, District- Ranchi … Opposite Party -----

CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI -----

For the Petitioner : Mr. Rishi Pallava, Advocate For the Opposite Party : Mr. Ashutosh Anand, Advocate Ms. Rishi Bharti, Advocate Ms. Priyasha Priyadarshani, Advocate -----

06/11.06.2025 Heard Mr. Rishi Pallava, learned counsel appearing for the petitioner and Mr. Ashutosh Anand, 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 24.08.2023 passed in M.C.A. No.225/2019 in connection with Original Suit No.89/2017 by the learned Additional Civil Judge (Junior Division)-XXII, Ranchi by which he has been pleased to allow the petition dated 19.07.2019 filed by the plaintiff/opposite party under Order XXVI Rule 10 of the CPC.

3. At the outset, Mr. Ashutosh Anand, learned counsel appearing for the sole opposite party submits that the petition was meant under Order XXVI Rule 9 of the CPC, however, inadvertently Rule 10 was typed in the said petition. He submits that however the spirit of the impugned order is under Order XXVI Rule 9 of the CPC.

4. Mr. Rishi Pallava, learned counsel appearing for the petitioner submits that the plaintiff/opposite party has filed Original Suit No.89/2017 on

08.06.2017 with relief that a decree be passed declaring the plaintiff’s exclusive right, title and interest over suit property and demarcation of the respective share of the parties with the help of survey knowing Pleader Commissioner along with the cost of the suit and any other reliefs. He further submits that the defendant/petitioner appeared in the said suit upon receiving notice issued by the learned trial court. According to him, the suit property comprises of property situated in Village- Kathchocho, P.O. & P.S. Mandar, P.S. No.89, District- Ranchi under R.S. Khata No.31, Plot No.950 measuring an area of 5 decimals out of 14 ‰ decimals and morefully described in the schedule. He then submits that the said property was gifted by the father of the plaintiff vide registered deed no.8570 dated 16.07.2002 after taking due permission under Section 46 of the Chotanagpur Tenancy Act from the learned Rent Suit Deputy Collector, Ranchi and since then the plaintiff came in absolute ownership and possession thereof. He submits that out of the said 14 ‰ decimals, the plaintiff sold only 9 ‰ decimals of land towards back portion by virtue of a registered deed of sale being deedno.4869 dated 10.04.2015 after taking permission under Section 46 of the Chotanagpur Tenancy Act to the defendant, who is petitioner herein and, thereafter, the plaintiff has got exclusive possession of the rest property in the front i.e. 5 decimals of land situated in Village Kathchocho and for that rent is also paid by the plaintiff. He elaborates his argument by way of submitting that the defendant/petitioner has no concern with the said land of 5 decimals which is in possession of the plaintiff/opposite party. He submits that false claim has been made in the plaint filed by the plaintiff about encroachment being made by the defendant/petitioner and in this background, a petition under Order XXVI Rule 9 of the CPC was filed by the plaintiff, which has been allowed by the impugned order. He submits that the learned trial court has wrongly allowed the said petition under Order XXVI Rule 9 of the CPC and in fact by way of that, the evidence has been tried to be collected for deciding the suit. He submits that the spirit of Order XXVI Rule 9 of the CPC has been violated and in view of that, the impugned order may kindly be set-aside. To butt