D.N.PATEL, J. - (1.) THE present petition has been preferred mainly being aggrieved by an order passed by the Sub - Judge I, Giridih, dated 10th September, 2008 in Partition Suit No. 8 of 1976, which is at Annexure 4 to the memo of present petition.
(2.) LEARNED Counsel for the petitioners (original plaintiffs), who have instituted Partition Suit No. 8 of 1976, has vehemently contended that a Pleader Commissioner was appointed under Order XXVI Rule 9 of the Code of Civil Procedure, upon an application preferred by the purchasers -defendants and in the measurement by the Pleader Commissioner, there was some description about northern boundary, which was incorrectly mentioned in the suit property by the original plaintiffs and, therefore, there was a need of rectification of northern boundary in the original plaint and, therefore, an application for amendment of the plaint was preferred, but, the same was dismissed by the trial court and, therefore, a writ petition bearing W.P.(C) No. 1869 of 2007 was preferred before this Court and this Court vide order dated 10th July, 2007 dismissed the claim of the present petitioners and it was observed by this Court that at an execution stage, no amendment in the plaint is allowed. Nonetheless, the Pleader Commissioner will act as per the evidence on record, at the time of drawing final decree in the Partition Suit. It is also submitted by the learned Counsel for the petitioners (original plaintiffs) that the Pleader Commissioner has given a report, which is annexed as Annexure 6 along with I.A. No. 33 of 2009 and as per the detailed map, given at internal page No. 10 of the said report, the plot, in dispute, is narrated by boundary ABCD and this plot is to be measured. As per the learned Counsel for the petitioners, this is not only Plot No. 337, but, it includes Plot No. 123 also, whereas the contesting respondents submitted that the said boundary ABCD is a boundary of Plot No. 337 and the land, in question, and no error has been committed by the Pleader Commissioner in the trial court. Learned Counsel for the petitioners has relied upon several documentary evidences.
(3.) BE that as it may, the order passed by the trial court dated 10th September, 2009 in Partition Suit No. 8 of 1976, at Annexure 4 to the memo of petition, states that the Pleader Commissioner must be allowed to measure the said plot, which is now drawn as ABCD in the Pleader Commissioner's report, keeping all the contentions of the parties to the suit open and if anybody is interfering with the measurement, those hindrances and barriers ought to be removed. If the doors are closed by anybody, then the doors are bound to be broken open, but, the learned Counsel for the petitioners very fairly submitted that there is no need of breaking any door or window and they are always inviting the Pleader Commissioner for measurement of the boundary ABCD, and all the contentions and rights of the parties in Partition Suit No. 8 of 1976 must be kept intact, as they are. The measurement is not a problem at all for the original plaintiffs, but, the learned Counsel for the original plaintiffs vehemently submitted that they have objection if the measurement is treated as an admission of any fact on the part of the plaintiffs.;