IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10631 of 2010 RAM SAGAR BHAGAT S/O LATE KISHUN BHAGAT R/O VILLAGE- MATHNA MAL P.S. AND ANCHAL GORAUL DISTRICT-VAISHALI. ………………PLAINTIFF /PETITIONER Versus 1. THE STATE OF BIHAR. 2. VIDYANAND BHAGAT S/O LATE MAHAVIR BHAGAT R/O VILLAGE-MATHNA MAL P.S. GORAUL DISTRICT- VAISHALI. 3. SITARAM BHAGAT @ AJAY KUMAR S/O SRI KAMAL BHAGAT R/O VILLAGE-MATHNA MAL P.S. GORAUL DISTRICT-VAISHALI. ……………..DEFENDANT/RESPONDENTS. For the petitioner : Mr. Yogendra Prasad Sinha-I (Advocate) For the State : Mr. Rajani Kant Mishra A.C. to G.P. X ----------- 2 18-08-2010 Heard learned counsel for the petitioner and learned counsel for the State. 2. This petition has been filed challenging order dated 20-4-2010 passed by Munsif-II, Hajipur (Vaishali) in Eviction Suit No. 4 of 2003 by which he has rejected the petition of the plaintiff petitioner for the appointment of survey knowing Pleader Commissioner for going at the spot and for preparing comparative map and for submitting his report as to whether the disputed land bearing R.S.P. No. 1215 had been carved out from old plot no. 848 (Part) or whether the same had been carved out from portion of C.S. Plot No. 475. 2 3. The law is well settled in this regard, especially the provision of Order XXVI Rule 10 of the Code of Civil Procedure which provides that if a Court from evidence on record finds it difficult to decide, it can pass order under the said provision for appointment of a Pleader Commissioner for his purposes, but any party to the suit cannot be legally allowed to collect evidence through the process of the Court as it is for the party itself either plaintiff or defendant to prove his case by evidence and if any party fails to support his pleading by evidence, his case has to fail. 4. In the instant case the Eviction Suit is pending for seven years, and now such a frivolous application was filed by the plaintiff only to delay the disposal of the suit. 5. In the said circumstances, this Court does not find any illegality in the impugned order of the court below and accordingly this writ petition is dismissed. 6. However, the Court below is directed to decide the Eviction Suit mentioned above expeditiously, preferably within a period of one year. S.P. (S. N. Hussain, J)