Research › Search › Judgment

Orissa High Court · body

2011 DIGILAW 445 (ORI)

Tushar Kanta Panigrahi v. Udayanath Sahu

2011-08-22

B.K.NAYAK

body2011
ORDER 22.8.2011 — Heard learned counsel for the parties. Perused the impugned order. The defendant in C.S. No. 29 of 2010 pending on the file of the learned Civil Judge (Jr. Division), Jharsuguda has filed this writ petition challenging the order dated 23.3.2011 passed by the Trial Court rejecting the defendant’s application under Order 26 Rule 9, CPC for deputing a survey knowing Commissioner to demarcate the suit land. The suit of the plaintiff-O.P. is for permanent injunction against the defendant. Admittedly, both the plaintiff and the defendant have purchased land from the common vendor and the lands of both are adjacent. Essentially, the dispute is with regard to identification and demarcation of the disputed land in question over which both the parties claim title by virtue of purchase from the common vendor and the defendant has also filed a counter claim. In the suit the defendant filed a petition for deputation of a survey knowing Commissioner for measuring, demarcating the land in question. The Trial Court has rejected the petition holding that there is much evidence to be adduced which may help in adjudicating the dispute regarding the boundary and therefore, it is not the proper stage to allow the prayer for deputing a Commissioner. For giving such ground the Trial Court evidently took note of the observation of this Court in the case of Sitaram Nayak v. Smt. Usharani Das; 2003 (I) OLR - 370, to the effect that when the dispute is relating to the boundary and evidence can be secured by the petitioner by employing the Tahasil Court Amin, an application under Order 26 Rule 9, CPC is not necessary. The learned counsel for the petitioner submits that the Trial Court having held that it was not proper stage for consideration of the application for deputing a Commissioner, he should have kept it pending for consideration at the proper stage instead of rejecting it outright without considering that the nature of the dispute entails investigation by a survey knowing Commissioner. The learned counsel for the O.P., on the other hand, contends that the petitioner has got the suit land demarcated through the Tahasil Amin twice and the reports of the Tahasil Amin have been led into evidence which would be sufficient along with other evidence on record to decide the dispute in question. The learned counsel for the O.P., on the other hand, contends that the petitioner has got the suit land demarcated through the Tahasil Amin twice and the reports of the Tahasil Amin have been led into evidence which would be sufficient along with other evidence on record to decide the dispute in question. Whether reports of any Tahasil Amin with regard to demarcation of the disputed land have been led into evidence or not is not borne out from the impugned order as the same is not at all taken into consideration by the Trial Court for rejecting the petition. On the other hand, the learned counsel for the petitioner has invited attention of this Court to some averments made in the plaint that the defendant had got the Tahasil Amin for demarcation of the land, but the demarcation could not be completed. Law is well settled, as observed by the Apex Court, in the decision reported in 2009 (II) OLR (SC) - 57 (Haryana Waqf Board v. Shanti Sarup and others) that when the controversy between the parties was regarding identification and demarcation of adjacent lands a Commissioner ought to be appointed for demarcation of the lands. Similar view has also been taken by this Court in the decision reported in 2011 (II) OLR - 678 (Kartik Chandra Nayak v. Bira Kishore Nayak and four others) following the earlier decision of this Court reported in 64 (1987) C.L.T. 722 (Mahendranath Parida v. Purnananda Parida and others) where it has been held that the Court should not ordinarily refuse to appoint a Commissioner if it considers a local investigation to be requisite or proper only on the ground that the party can adduce evidence through a private survey knowing person. The aforesaid judicial pronouncements reveal that for the purpose of demarcation of adjacent lands the evidence and report of a survey knowing person is very much essential. The survey knowing person may be a private Amin taken privately by any or both the parties or it may be a survey knowing Commissioner appointed by the Court under Order 26 Rule 9, CPC. The purpose is that the Court should be in a position to come to a definite conclusion as to the identity of the disputed land and be able to give a decision about its ownership. The purpose is that the Court should be in a position to come to a definite conclusion as to the identity of the disputed land and be able to give a decision about its ownership. Therefore, where the report of a private Commissioner has been accepted as correct and the Court is in a position to give a decision on the basis of such report along with the other evidence on record, it may not be necessary to depute a survey knowing Commissioner at the intervention of the Court. But where the evidence along with the evidence of private Commissioner is deficient or inadequate so that the Court is not in a position to come to a definite conclusion, the Court has jurisdiction to depute a survey knowing Commissioner. In the present case, the Trial Court has not made any reference about the evidence or report of any private Amin taken by the defendant or any Tahasil Amin having demarcated the land. In such circumstances, without taking into consideration the report of the private Amin or the Tahasil Amin if available the Court below should not have rejected the petition. I, therefore, set aside the impugned order and direct the Trial Court to consider the report of any Tahasil Amin with regard to demarcation of the disputed land, if led into evidence, and in the event the Trial Court comes to the conclusion that the report is not adequate to determine the controversy with regard to the boundary of the lands of the parties it shall reconsider the petition filed by the defendant under Order 26 Rule 9, CPC. The writ petition is accordingly disposed of. Consequent upon disposal of the writ petition M.C. No.5406 of 2011 stands disposed of. Issue UCC as per rules. Petition disposed of.