=-:I THE HIGH COURT OF SIKKIM : GANGTOK VVRIT PETITION (a) NO. 4 0F 2004 In the matter of an application under Article 227 of the Constitution of India. and in the matter of 1. Tulamaya chettri Nar Bahadur Chettri, Both residents of Jitlang Busty, P.O. & P.S. Rangpo, East sikkim .... Petitioners VERSUS Younarayan Pradhan 2. Bhakta Bahadur pradhan 3. Ben prasad pradhan All sons of Late Kulbir Pradhan, R/o Church Road, Gangtok, East sikkim .... Respondents For petitioners : MessrsA. K. Upadhyaya, Sudesh Joshi, S. Pradhan, Advocates. F`or respondents : B. Sharma, Advocate. PRESENT : THE HONBI,E SIIRI JUSTICE R.K. PATRA, CHIEF drusTICE. THE HON'B'LE SHRI JUSTICE N. SURUAMANI SINGH, JUDGE. Date Of order : 28fth Mcay, 2004. ORDER R.K. PIATRI The defendants in civil suit no. 30 of 2002 have filed this writ petition challenging the order dated 28.11.2003 of the learned trial Judge appointing an amin commissioner on the pra.yer made by the plaintiffs- respondents. 2. The respondents have filed the afore-mentioned suit asserting that they are the absolute owners of the land covered by plot no. 1998 (schedule `A' land) situated at Jitlang Block, East Sikkim having been inherited the same from their ancestors. They have been possessing it for more than a century. In the year 1997 the petitioners started claiming a portion of it to be theirs on the allegation that the petitioner no. 1 purchased it from one Kalusingh Tamang but as a matter of fact the land alleged to have been purchased by him does not appertain to schedule `A' land. The petitioners filed civil suit no. 60 of 1997 for declaration of title in respect of the said land and the suit was dismissed in June 2000. After dismissal of the suit, the petitioners encroached upon schedule 8' land which is part and parcel of schedule `A' land. This has given cause of action to the respondents to rile the suit for the following reliefs: (i) recovery of possession of schedule q3' land by evicting the petitioners therefrom; (ii) permanent injunction restraining the petitioners from encroaching upon schedule `A' land or any portion thereof; (iii) damages. The petitioners as the defendants have ffled their written statement. Their case is that petitioner no. 1 purchased land measuring 4.70 acres appertaining to plot no. 1065 (new survey plot no. 2001) under Central Pandam Block from Kalusingh Tamang in the year 1979 by wa.y of registered sale deed and has been in possession of it as its absolute owner. The schedule q3' land is that land which belongs to petitioner no. 1 in view of the aforesaid purchase in 1979. According to the petitioners, the respondents have laid a false claim over the schedule 8' land out of sheer greed. 3. On the basis of the aforesaid pleadings of the parties, the trial Judge by order dated 1.10.2002 has framed the following three issues:- (i) whether the plaintiffs or the defendant no. 1 is the absolute owner of schedule 8' land; (ii) whether the suit is barred by limitation; (iii) to what reli`ef the plaintiffs are entitled. Thereafter both sides examined their witnesses and filed documents. After closure of their evidence, the matter was posted to 14.10.2003 for arguments. On that day the respondents filed a petition for appointment of an amin commissioner to "demarcate the whole area of the plaintiffs and the whole area of the defendants so that he could come to the finding whether the suit property is part and parcel of plot no. 1998 or not". It was stated in the petition that t#`isJ appointment of amin commissioner is caserelatestoencroachmentandtheCoulfhastocolnetoa findingwhethertheschedule8'IaLndformspalfofplotno. 1998 or forms part of defendants' land. The petitioners filed objection contending that prayer for appointment of amjn commissioner should not be allowed at the belated stage when both parties have already examined witnesses andclosedtheirevidence.TheleamedtrialJudgeaccepted the prayer for appointment of an amin commissioner by ~L__ . observing as follows:- 4. necessary because the `` .............. In the instant case though the parties have already closed .their e,Etden££.=dtEpow:t^i5~i.I_:=±s#= but when the controversy is as to identification, location or measurement/ demarcaition of the land in question, such controversy can be resolved by conducting local investigation to get the proper identity of the land in dispute.'' Order 26 Rule 9 CPC authorises the Court to appoint a commissioner if it considers a local investigation to be requisite or proper for the purpose of elucidating any matter ih dispute, or for other reasons mentioned therein. The matter is thus left to the discretion of the Court. The discretion is however a I.udicial one and not an arbitrary exercise ofhae power. The object of such appointment is to obtain evidence from the spot itself which helps the Cout to properly unperstand and assess the evidence on record. The :::::::ubittedbythe commissioner is a piece of evidence i`:`, .1 0\ which has to be considered along with other evidence on record. In Mahendranath Parida vs. Purnananda Parida AIR19880rissa248,JusticeR.C.Patnalk(ashethenwas) pithily observed as follows:- "No doubt, the provision confers a discretionontheCourt.Butthedjscretion, asitiswellknown,hastobeexercisedjna judicious and `qniTtlH -- . ____.yu. dliQ sound manner but gxe:c]::SSS:faalnlyt%e¥£t:C::P]i§i°u:S:!giQs+I,onnr+:=:: rlJa --___ . ®. :I-ucia:;iD;Lea:;P=°apt::rfi::tEfesppjiE:?:i Therefore, where the Corn considers local investigation to be reriiii.c`..+- - not ls the be requisite _o_r_..::^:a:u:I :Pvestfgation to a proper, ordin-a:i;+.it Lsuho:led :eoEuise£::£ne=g exercise iutiQrl;A+,.^- ' I uris diction. It illEn±ff EEl §EEEEI the Or if the or in circumstances motion is mala fide ir party-h-;+s~:i`o°iLc=[C=SdJ:S:i:gtnior:£u=Tie£ :d:en:e£:;ago:nw}n::rpg::i::nr=te:snut8ceht:a:£t:e:i it does not seek any privilege or indulgence. " [emphasis supplied] Ordinarily we would not have interfered with an order appointing an amin commissioner but in the case at hand partieshaveclosedtheirevidenceandwhenthematterwas at the stage of arguments the respondents came up with pray_Er for appointment of a commissioner. In view of the admittedfactthatpartieshavealreadyclosedtheirevidence, acceding to the prayer for appointment of an amin commissioner at this belated stage would amount to permittin e respondents to rill up lacune in their evidence thus leading to a roving inquiry. A leaned single Judge of the Calcutta High Court in Satish Agarval vs. Tirath Singh 1996 A I H C 1761 has held that when the matter awaits arguments, the prayer made dy the defendants for local investigation,ifallowedwouldamounttofillinguplacunein theirevidenceandsuchprayershouldnotbeallowed. 5. For the reasons aforesaid, the impugned order passedbythelearnedtrialJudgecannotbesustainedinlaw and is hereby set aside. He is directed to dispose of the suit by the end of June, 2004. 6. In the result, the writ petition is allowed. order as to costs. (_5.-K: _atra ) Chiof Jfustice 28.OS.2o04 I agree. Dictation taken & typed ty me Djpak Saha I. rJ ( N. Surj` ulII,1i Gip...-.!L!.` anl Singh ) ac.o5.aco4