IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.102 of 2007 Naveen Kumar Verma, Son of Late Badri Narayan Prasad, Resident of Mokimpur, Begusarai, Mohallah- Mungeriganj, Ward No.9, Pargana- Ballia, Sub-Division & District- Begusarai ….. Plaintiff-Appellant - Appellant Versus 01. Ravindra Kumar Gupta, Son of Late Asharfi Sah 02. Smt. Reena Gupta, wife of Ravindra kumar Gupta Both resident of Salim Nagar, Police Station- Gogri, District- Khagaria at present residing at Mokimpur, Begusarai, Mungeriganj, Ward No.1, Sub-Division & District- Begusarai ….. Defendants-Respondents- Respondent Ist Set 03. Sri Raj Kumar Sinha, S/o Late Jagat Kumar Sinha 04. Sri Indra Kumar Sinha, S/o Late Jagat Kumar Sinha 05. Sri Ajoy Kumar Sinha, S/o Late Jagat Kumar Sinha 06. Dilip Kumar Sinha, S/o Late Jagat Kumar Sinha 07. Sheo Kumar Sinha, S/o Late Jagat Kumar Sinha All resident of village- Papraur, Pargana- Milki, Police Station- Barauni, Sub-Division & District- Begusarai ….. Defendants-Respondents- Respondent 2nd Set For the Petitioner:- Mr. V. Nath, Mr. Ashok Kumar & Mr. Walliur Rahman, Advocates For the Respondents:- Mr. Ashwani Kumar Singh, Sr. Advocate, Mr. Pankaj Kumar Singh, Mr. Pankaj Kumar Das & Mr. Madanjeet Kumar, Advocates ----------- 06 11.02.2010 1. Heard learned counsel for the appellant and learned counsel for the respondents. 2. This second appeal has been filed by sole plaintiff- appellant- appellant challenging the judgments and decree of both the learned courts below. 2 3. The matter arise out of Title Suit No. 01 of 1999, which was filed by the plaintiff- appellant for declaration of his title over the suit land and also for recovery of its possession by removal of Tank, Nala, Bath- room etc. alleged to have been constructed by defendants- respondents- respondents by encroachment and for other ancillary reliefs. The said suit was dismissed on contest by the learned Additional Munsif-III, Begusarai vide his judgment and decree dated 23.4.2005. 4. Against the aforesaid judgment and decree of the trial court the plaintiff filed Title Appeal No. 5 of 2005 which was also dismissed on contest by the learned Additional District Judge-cum-Fast Track Court-V, Begusarai vide his judgment and decree dated 26.2.2007. Against the aforesaid judgments and decree of the learned courts below, the instant second appeal has been filed. 5. Learned counsel for the appellant vehemently challenges the aforesaid judgments and decree of the learned courts below on the ground that the registered deeds of sale Exhibits B, B/1 and J were very important documents, showing the plaintiff or his vendor on the Eastern boundary of the land purchased by the defendants, but that aspect of the matter was ignored by the courts below. He further submitted that the suit land being situated between the land of the plaintiff and the 3 defendants, the measurements of the land in question was essential and the report of the Pleader Commissioner appointed by the Court, at the instance of the plaintiff, having not found to be proper and sufficient, it was the duty of the Court below to appoint another survey knowing Pleader Commissioner afresh for determination of the real issues involved in the case which was necessary in the instant case. He relies upon an earlier decision of this Court in the case of Sita Ram Thakur Versus Nandu Jha & Others, reported in 1986 P.L.J.R. 527. 6. So far as the first question raised by learned counsel for the appellant is concerned, it is quite apparent that the registered deeds of sale, in favour of defendants, Exhibit B and B/1 are not in dispute, nor it is disputed that the land of plaintiff is on the eastern boundary of the land of the defendants. The relevant question in dispute is that whether the area in possession of the defendants is in excess of the area of land purchased by them by the aforesaid deeds, as the plaintiff has claimed that the suit land is the land of plaintiff, adjacent east to the land purchased by the defendants vide Exhibits B and B/1, whereas the defendants have claimed that the suit land was included in the said sale deed. This aspect of the matter has been considered in detail by the learned Trial Court in paragraph-27 of its judgment, 4 whereas it has been considered in detail by the Lower Appellate Court in paragraph-10 of its judgment. Hence on the basis of said documents as well as the other evidence of the parties both oral and documentary, the learned courts below have rightly come to their specific findings in their respective judgments. 7. So far as second question raised by learned counsel for the appellant is concerned, it is quite apparent that a survey knowing Pleader Commissioner was appointed at the instance of the plaintiff for measuring the land, purchased by the parties including the suit land, but his report exhibit-3 did not contain the signature of the defendants nor any local person signed over the spot note prepared by the Commissioner and the said report of Pleader Commissioner did not even clarify the extent of the portion of the suit land covering plot nos. 441 and 442. Furthermore, the plaintiff himself deposed as P.W.-3 and in his deposition admitted that he did not want any scientific measurement of the suit land in the case by survey knowing Pleader Commissioner. In the said circumstances, there was clearly no occasion for the learned Court below to appoint another survey knowing Pleader Commissioner for the purpose, especially when the plaintiff also failed to produce any relevant document such as survey map, khatian or any map or plan for 5 reconstruction passed by the notified area committee nor there was any other document in support of the plaintiff’s claim that he or his father had made any construction. Hence, the reluctance on the part of the plaintiff for appointment of another Pleader Commissioner was sufficient for the Court to find that the plaintiff was not coming with clean hands, rather due to apprehension of disclosure of real facts he did not want appointment of a fresh survey knowing Pleader Commissioner for the purpose. In the said circumstances the plaintiff-appellant at this stage cannot be legally allowed to raise such question. 8. So far as, the decision of this Court in the case of Sita Ram Thakur Versus Nandu Jha and Others (Supra) is concerned it is with regard to the question whether the Commissioner was a ‘competent person’, but here in this case the incompetency of the Pleader Commissioner was not in question, rather the Commissioner appointed in this case was a survey knowing Pleader Commissioner who was fully competent and the dispute was only with regard to the merit of his report. Furthermore, the plaintiff himself not being ready for appointment of a new survey knowing Pleader Commissioner for the purpose, there was no question of denying him the services of an efficient Commissioner. 6 9. Furthermore, it is the duty of the plaintiff to prove his claim regarding alleged encroachments by his own evidence, but from the reading of the material on record including the impugned judgments and decree of the learned Courts below it is quite clear that he has miserably failed to prove his case by any valid material whatsoever and hence, merely on the basis of a report of the Pleader Commissioner neither the title of the plaintiff can be declared nor possession of the suit premises can be delivered to him. On the other hand, the defendants/ respondents had been able to prove that the suit land was part of the land acquired by them by registered documents. 10. Considering the aforesaid facts and circumstances of this case and the materials on record, this Court does not find any illegality in the impugned judgments and decree of the lower Courts nor does if find any substantial question of law involved in this Second Appeal which is accordingly dismissed at this stage of hearing under Order 41 Rule 11 of the Civil Procedure Code. P.K. (S.N.Hussain, J.)