IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.19709 of 2010 DEVAKI PRASAD SAH @ DEVAKI SAH, BEL DUMARWANA TOLE GANJ POLICE STATION BAIRGINIA SITAMARHI. Versus 1. BAL KUMAR SAH S/O LATE JAGDEO SAH 2. LANGATU SAH S/O LATE AYODHYA SAH 3. BINDESHWARI SAH 4. KISHORI SAH, BOTH S/O LATE HIRALAL SAH, ALL RESIDENTS OF BELAGANJ DUMARWANA, POLICE STATION BAIRGINIA SITAMARHI. 5. RAJENDRA SAH 6. JAINARAYAN SAH, BOTH SONS OF LATE ANANT SAH. ----------- 3 08.12.2010. The instant application is directed against order dated 9.4.2009, passed by the Munsif, Sadar Sitamarhi in Title Suit no. 8/2000, by which petitioner’s application for appointment of Survey knowing Commissioner has been rejected under Order 26 Rule 10A of the C.P.C. on the ground that the aforesaid application has been filed belatedly without considering the aspect whether the disputed plot is carved out from C.S.P. no. 3171 or 3173. The plaintiff-petitioner filed Title suit no. 8/2000 before the Munsif Sadar, Sitamarhi for declaration of title and recovery of possession. The case of the petitioner is that the new survey plot no. 6915 measuring an area of 5 dec. was carved out from C.S.Plot no. 3171 which belonged to his ancestors, but the same had wrongly been recorded in the name of the defendant. On the other side, case of defendant is that the aforesaid new survey plot had been carved out from C.S.Plot no. 3173 and not from 3171. Counsel for the petitioner submits that for considering the issue he had filed an application under Order 26 Rule 10A of the C.P.C. for appointment of Survey knowing Commissioner but the same has 2 been rejected. In support of submission, he relied on a decision rendered in case of Smt. Sugga Devi Vs. Pramod Choudhary, reported in 2000(1) PLJR 847. In the aforesaid case, this Court held that in case of encroachment, the same could be well decided by appointing Pleader commissioner. In the aforesaid case, it was held that if the report of the Pleader commissioner was rejected, this Court should appoint another Pleader commissioner. Report of the Survey knowing pleader commissioner under Order 26 Rule 10A of the C.P.C. is a piece of evidence under the Evidence Act and evidence of both the parties in the suit concluded on 7.9.2007 and the same is pending for argument. At this juncture, if the application of petitioner for appointment of Survey knowing pleader commissioner is considered and allowed, the same would prejudice the defendant’s case as they have already adduced and closed their evidence. In view of the above, this Court is not inclined to allow the prayer of petitioner and thus the writ petition is dismissed. Shashi (Samarendra Pratap Singh, J.)