ORAL JUDGMENT

Date : 15-07-2024 Heard learned counsel for the petitioner as well as learned counsel for the respondents on the point of admission and I intend to dispose of the present petition at the stage of admission itself.

2. The instant petition has been filed by the plaintiff/petitioner under Article 227 of the Constitution of India for quashing the order dated 04.01.2023 passed in Title Suit No. 724 of 2018 whereby and whereunder the report dated 19.10.2021 submitted by the learned Survey Knowing Pleader Commissioner was rejected by the learned trial court.

3. Learned counsel for the petitioner submits that the petitioner is the plaintiff before the learned trial court who has filed Title Suit No. 424 of 2018 in the court of learned Munsif-2, Siwan seeking declaration with regard to Schedule 1 property and has sought further relief by way of issuance of direction to deliver possession over the suit land after removing the construction made by the defendants. During pendency of the suit, an application was filed on 01.07.2019 by the plaintiff under Order 26 Rule 9 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) on prayer for appointment of Survey Knowing Pleader Commissioner on the following points:-

(i) Whether the land having area of 14¼ dhur is the part of 1 katha land of Schedule 2 land and whether the defendants have encroached and made construction over the said portion of the land.

(ii) The Survey Knowing Pleader Commissioner be directed to measure the length and breadth of the disputed land and the structure existing over it.

4. Thereafter, vide order dated 23.11.2019, the learned trial court allowed the application and directed the Survey Knowing Pleader Commissioner to report on the point whether the Schedule 2 land is the part of Schedule 1 land mentioned in the plaint. Report dated 19.10.2021 was submitted by the learned Survey Knowing Pleader Commissioner according to his findings. But the said report was rejected by the learned trial court.

5. Learned counsel further submits that the order of the rejection of the report is erroneous and without consideration of facts and law. The learned trial court was required to pass a fresh order for re-appointment of the Survey Knowing Pleader Commissioner if it rejected the earlier report of the Survey Knowing Pleader Commissioner in terms of Order 26 Rule 10(3). Learned counsel further submits that the report was rejected merely on the ground that the report was not submitted in terms of specific orders of the learned trial court. So on mere technicality the report has been rejected, though it was a detailed report. Learned counsel further submits that in the similar circumstance the learned Single Judge of this Court in the case of Smt. Sugga Devi Vs. Pramod Chaudhary, reported in (2000) 1 PLJR 847 while considering the rejection of the report of the Survey Knowing Pleader Commissioner by the trial court held that when the report of the Survey Knowing Pleader Commissioner was rejected then it ought to have been sent for the second time to do the survey properly and submit a report as per specific direction. Thus, the learned counsel further submits that it was incumbent upon the learned trial court to direct the Survey Knowing Pleader Commissioner to submit the report in terms of the writ handed over to the Survey Knowing Pleader Commissioner for survey of the suit plot. Therefore, the order impugned is not sustainable and the same needs be set aside.

6. Learned counsel appearing on behalf of the defendants/respondents opposes the submission made on behalf of the petitioner. Learned counsel for the respondents submits that the writ was issued only for submitting a report on the point whether the Schedule 2 land is the part of the Schedule 1 land mentioned in the plaint. But the Survey Knowing Pleader Commissioner went over board and submitted a detailed report in favour of the plaintiff. The learned trial court rightly rejected the report of the S