M.Y.EQBAL,J. - (1.) This application under Article 227 of the Constitution of India is directed against the order dated .19.'12.2007 passed by Additional Judicial Commissioner. IX, Ranchi in Title Appeal No. 85 of 2005 in terms of which two petitions filed by defendant respondent under Order XXVI Rule 9 C.P.C., have been rejected have heard Mr. Rohit Roy, learned counsel for the petitioner and Mr. P.K. Prasad, learned counsel for the respondent.
(2.) THE facts of the case lie in a narrow compass: Plaintiff/respondents filed Title Suit No. 27/1999 for declaration of right, title and interest over the suit property and also confirmation of possession and a further for declaration that sale deed dated 5.8.1989 executed by one Emanuel Khalkho is null and void and inoperative against the plaintiff. The suit was contested by the defendant petitioner denying that said Emanuel Khalkho ever executed the sale deed in favour of mother of the plaintiff. The trial court by judgment dated 29.9.2005 dismissed the suit holding that plaintiff/respondent failed to prove his title and possession over the suit property. Aggrieved by the said judgment, the plaintiff/respondent preferred appeal being Title Appeal No. 25/2005. At the appellate stage new point was raised that the suit property alleged to have been purchased by the plaintiff is different from the property alleged to have been purchased by the defendant. In course of argument of the appeal the aforesaid new point was raised by the appellant. Be that as it may, two petitions were filed by the defendant/petitioner, who is respondent in appeal, one under Order XXVI Rule 9 C.P.C. for appointment of survey knowing Pleader Commissioner to allocate the property of the plaintiff and defendant as per the boundary of their respective sale deeds and another under Order XLI Rule 27 C.P.C. for bringing on record three certified copies of the sale deed and other documents in order to meet the argument of the appellant. The court below rejected both the petitions.
(3.) THE plaintiff/respondent filed the aforementioned suit for declaration of right, title, interest and confirmation of the suit property fully described in the schedule of the plaint and the sale deed on the basis of which plaintiff claimed title and possession. On the other hand, the defendant/ petitioner claimed title and possession over the suit property on the basis of sale deed in which description of the suit property is mentioned. The trial court after considering the entire evidence adduced by both the parties decided the issue and dismissed the suit.;