- (1.) The present petition has been preferred under Article 227 of the Constitution of India against the order passed by trial Court dated 25th of September, 2008 in Title Suit No. 22 of 2003, whereby an application preferred by the present petitioners (original substituted defendants) under Order 26 Rule 10 (A) of the Code of Civil Procedure, for appointment of the Court Commissioner, was dismissed.
(2.) HAVING heard the learned counsel for both the sides and looking to the facts and circumstances of the case, I see no reason to entertain this writ petition and the same deserves to be dismissed for the following facts and reasons: (i) It appears from the fact of the case that respondent, who has instituted Title Suit No. 22 of 2003 and has claimed ownership of Plot No. 51 on the basis of a registered sale deed. The defendants are also claiming ownership upon the said plot of land through another registered sale deed. .(ii) It also appears from the fact of the case that the whole evidence is taken by both the parties and stage of evidence has also been closed for original plaintiff as well as for original defendant in the title suit. (iii) It appears that the present petitioners (original substituted defendants) had preferred an application under Order 26 Rule 10 (A) of C.P.C. for the appointment of the Court Commissioner for taking further evidence in form of Court Commissioners report. It appears that because of certain witnesses deposition, petitioners -original defendants are confused about some merger of plot No. 51 with Plot No. 201. There is also confusion created by the original defendants i.e. by the present petitioners that if the decree is to be drawn and if plot No. 51 is to be separated, it will create difficulties and, therefore, an application under Order 26 Rule 10 (A) of C.P.C., has been filed. Looking to the facts and circumstances of the case, both the parties are claiming the land in question i.e. Plot No. 51 on the basis of registered sale deed. Whether the plot No. 51 is amalgamated with Plot No. 201, makes no difference in deciding a case. No further evidence can be created through the report, which is to be given by the Court Commissioner under Order 26 Rule 10 (A) of C.P.C., especially when the whole evidence is taken over and stage for taking evidence, is closed for both the parties. Now, the matter is kept for final argument before the trial Court. Assuming without admitting that there is merger of plot No. 51 with plot No. 201, always the same is separable and severable, looking to the measurement of plot No. 51. It appears that this application, which has been preferred under Order 26 Rule 10 (A) of C.P.C., is only as a delay technique by the present petitioners (original substituted defendants). In view of this fact, I see no reason to entertain this petition. No error has been committed by the trial Court in dismissing the application, preferred by the present petitioners (original substituted defendants).
(3.) I hereby direct the trial Court to hear and decide the Title Suit No. 22 of 2003, as expeditiously as possible preferably on or before 30th of August, 2009.;