SHRI NIWASH OJHA Vs. SHRI VISHWANATH OJHA AND OTHERS

JUDGEMENT

(1.) Plaintiff in Title Suit No. 29 of 1981 filed before the 1st Munsif, Buxar, is the petitioner in the present revisional application. This application is directed against the order dated 1st October, 1982 passed by the Subordinate Judge, Buxar, in Miscellaneous Appeal No. 17/81, by which he has set aside the order dated 13.3.1981 passed by the 1st Munsif, Buxar. By order dated 13.3.1981 the learned 1st Munsif, Buxar ordered that the Commissioner's report be forwarded to the Additional Chief Judicial Magistrate, Buxar, for Cognizance. The plaintiff -petitioner filed the title suit (T.S. No. 29/81) in the court of 1st Munsif, Buxar for declaration of title and for removal of encroachment as well as for delivery of possession after removing the alleged encroachment made by the defendants opposite party over the lands described in Schedule -I of the plaint. The alleged encroachment made by the defendants -opposite party was shown in the sketch map given in Schedule II of the plaint. The plaintiff petitioner has also prayed for an injunction restraining the defendants not to make any fur there encroachment/construction over the plaintiff's land described in Schedule I. Shorn of other details, the plaintiff filed a petition for appointment of an Advocate Commissioner for local inspection on the grounds mentioned in that petition. By order dated 18.2.1981 an Advocate Commissioner was appointed by the court below for local inspection and the plaintiff was directed to deposit the fee which order was complied with by the plaintiff and one Shri Rama Kant Mishra was appointed as Commissioner to hold the local inspection and submit his report by 23.2.1981. Accordingly, a writ, with necessary papers, was issued to the Advocate Commissioner on 19.2.1981. The learned Advocate Commissioner accordingly went to Mouza Kharha where the suit land situates and according to the petitioner he called the Chowkidar through plaintiff petitioner who came and to whom the Advocate Commissioner explained his purpose for visit. According to the petitioner, the learned Advocate Commissioner asked the Chowkidar to inform the defendants opposite party about his arrival and the purpose of his visit and also further directed the Chowkidar to be present at the spot. According to the petitioner the learned Advocate Commissioner went to the disputed land followed by the petitioner and his counsel and the learned Advocate Commissioner met a few persons at the sport. The learned Advocate Commissioner, according to the petitioner, explained the purpose of his visit to the defendants and requested the parties to co -operate with him in his work and then, according to the petitioner, he proceeded for work.

(2.) The petitioner's case is that the learned Advocate Commissioner was obstructed in his work by the defendants. The learned Advocate Commissioner, according to the petitioner tried to persuade the defendants not to obstruct as he was on duty but his all persuasion went in vain and the defendants according to the petitioner, went to their house and came with deadly weapons and the learned Advocate Commissioner apprehended danger and suspended his work and left the place.

(3.) Accordingly, the learned Advocate Commissioner submitted his report stating that obstruction was caused by the defendants and no measurement could be made. The relevant extract of the learned Advocate Commissioner's report (which is Annexure 1 to the instant application) is as follows: - -