- (1.) THE present writ petition has been preferred under Article 227 of the Constitution of India against an order passed by the Trial Court in Title Suit No. 15 of 2006 dated 22nd May, 2008, below an application preferred by the original defendants under Order XXVI Rule 9 of the Code of Civil Procedure for appointment of the Court Commissioner and as the Court Commissioner has been appointed at the behest of the original defendants, original plaintiffs have preferred this writ petition.
(2.) HAVING heard learned counsel for the petitioners and looking to the facts and circumstances of the case, I see no reason to entertain this writ petition mainly on the following facts and reasons: (i) The present petitioners, who are the original plaintiffs, have instituted a Title Suit No. 15 of 2006 before the Court of Munsif, Koderma, wherein the petitioners are claiming title upon the suit plot no. 452, measuring 14 decimals. It is contented by the learned counsel for the petitioners that there is no dispute that original defendants are in possession of the suit property. (ii) It also appears from the facts of the case that the respondents (original defendants) have stated before the Trial Court that the defendants are not only defendants, who have exclusive possession of the suit property, but, there are as many as half a dozen persons, who are in possession of the suit property. This fact was suppressed by the original plaintiffs in the plaint likewise, there are constructed property of house, shop, clinic etc. and therefore, original defendants have preferred an application under Order XXVI Rule 9 of the Code of Civil Procedure for appointment of the Court Commissioner so that it will be helpful to the Court in deciding the dispute between the parties and the correct position of the suit property will be before the Trial Court. (iii) It appears from the facts of the case that the Court Commissioner has been appointed by the Trial Court, in view of an application preferred by the original defendants under Order XXVI Rule 9 of the Code of Civil Procedure, for better clarity of the dispute between the parties. Looking to the impugned order, no error has been committed by the Trial Court in appointing the Court Commissioner. There are as many as half a dozen persons residing and in possession of the suit property over and above the original defendants, as per allegation of the original defendants. Moreover, as per allegations of the original defendants, there are house, shop, clinic etc. upon the suit property. Looking to these facts, the Court Commissioner's appointment is necessary for better clarity of the dispute between the parties before the Trial Court, especially, when there is suppression of the fact by one of the parties of the suit. No error has been committed by the Trial Court in appointing the Court Commissioner. (iv) Even otherwise, no prejudice is going to be caused upon the present petitioners, who are original plaintiffs. Only plaintiffs' evidence is closed, defendants' evidence have not been started. In view of these facts, there is no substance in this writ petition. Hence, the same is, hereby, dismissed.;