( 2025:JHHC:10816 ) 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI C.M.P. No. 308 of 2025 1. Niyaran Tuti @ Narayan Tuti, aged about 30 son of Ayub Tuti 2. Lemsaa Munda, aged about 43 years, son of Chamburai Munda 3. Imanuel Tuti aged about 39 years, son of Ayub Tuti 4. Chamburai Tuti @ Munda, aged about 31 years, son of Sanika Munda 5. Sirka Munda, aged about 39 years, son of Khadiya Munda 6. Faguya Munda, aged about 60 years, son of Jogon Munda 7. Polus Tuti, aged about 36 years, son of Ishaak Tuti 8. Yakub Tuti, aged about 43 years, son of Beneyam Tuti 9. Jetha Munda @ Tuti, aged about 56 years, son of Ram Munda All above resident of village Patra Toli, P.O. and P.S. Khunti, District-Khunti, Jharkhand …… Petitioners Versus 1. Kishasar Sultana wife of Niyaz Ahamad 2. Sadik Ahmad, son of late Niyaz Ahmad 3. Tazaniyan Ahmad, son of late Niyaz Ahmad 4. Talat Ahmad, wife of late Saduddin Ahmad 5. Nariya Jabin, son of Sadruddin Ahmad 6. Nisat Jabin, son of Satruddin Ahmad 7. Asif Ahmad, sonof Satruddin Ahmad 8. Ashruddin Ahmad, son of Molbi Mohiuddin Ahmad 9. Aftab Ahmad, son of Molbi Mohiuddin Ahmad All above residents of village Mohna Toli, P.O. and P.S. Khunti, District-Khunti, PIN 832510. …… Opposite Parties CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners : Mr. S.K. Vishwakarma, Advocate For the Opp. Parties : …….. 05/Dated: 08/04/2025 Heard learned counsel for the petitioners. 2. This petition has been filed under Article 227 of the Constitution of India for setting aside order dated 07.09.2024 passed in Original Suit No. 46 of 2018 whereby petition filed under Order 26 Rule 9 read with section 151 of C.P.C. has been rejected by the learned court. 3. Learned counsel for the petitioners submits that Original Suit No. 46 of 2018 was instituted for cancellation of sale deed being void, invalid and not binding upon the plaintiffs including right, title and interest to be declared. He further submits that in the said suit petition under Order 26 Rule 9 read with section 151 of C.P.C was filed for appointment of pleader ( 2025:JHHC:10816 ) 2 commissioner which has been rejected by the learned Court. He submits that ground has been taken for appointment of pleader commissioner to find out correct position of the disputed land as to whether the house has been constructed over the property or not. He submitted that the learned court has wrongly rejected the said petition in view of that the impugned order may kindly be set aside. 4. The Court has gone through the impugned order dated 07.09.2024. The learned court has appreciated the Order 26 Rule 9 read with section 151 of C.P.C and has come to the conclusion that it is proper and necessary for the purpose of elucidating any matter in dispute and other four proposes which is not relevant the local investigation may be permitted by the court. Learned court has further found that relief sought for by the plaintiff in the suit is for declaration of cancellation of sale deed executed by one Saiyad Mohamad Israil and the learned court has held that the said issue will be decided on the evidence made by the parties and not upon the report of the pleader commissioner. 5. The Court finds that the learned court has rightly dismissed the petition. 6. It is further well settled that the object of local investigation by appointing Commissioner is not to collect evidence which can be adduced in the Court. The trial court may appoint a Commissioner to carry out survey but ultimately findings have to be recorded by the trial court itself. Reference may be made to the case of Praga Tools Corpn. Ltd. v. Mahboobunnissa Begum, reported in (2001) 6 SCC 238 wherein, at paragraph No.12, it has been held as under:- "12. The State of Andhra Pradesh has filed objections to the findings of the trial court. On behalf of the appellants and the State of Andhra Pradesh it was submitted that the trial court could not have discarded the findings of the Court ( 2025:JHHC:10816 ) 3 Commissioner. It was submitted that as per the orders of this Court, it was only this Court which could hear objections on the report of the Commissioner. We see no substance in this submission. This Court had directed the trial court to record findings. The trial court may have appointed a Commissioner to carry out survey but ultimately the findings had to be recorded by the trial court. The report of the Commissioner could only be an aid to the trial court in arriving at its findings. The trial court has allowed parties to lead oral as well as documentary evidence. The trial court has complied with the directions of this Court." 7. The purpose of getting report from Survey Knowing Commissioner to find out the present physical possession and the land in dispute and to find out the actual State of Affairs in between the parties and the appointment of Survey Knowing Commissioner for that purpose will not bound to collect the evidence rather it will be elucidated any matter in dispute. 8. The provision as contained under Order XXVI Rule 9 of the CPC cannot be used for the purpose of collection of the evidence, it is based upon the premise that if the litigants are before the Court of law and the onus upon one or the other litigants to make out case on their own leg and there cannot be an opportunity being given by the Court to create evidence to improve the case by way of appointing the pleader commissioner. 9. In view of above the Court finds that the learned trial court has rightly appreciated the spirit of Order XXVI Rule 9 of the CPC. There is no perversity in the impugned order. As such this petition is dismissed. Pending I.A, if any, stands dismissed. ( Sanjay Kumar Dwivedi, J.) Satyarthi/