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2015 DIGILAW 568 (ORI)

Nakula Sahu v. Suresh Chandra Beherdolai

2015-10-01

AKSHAYA KUMAR RATH

body2015
ORDER : Akshaya Kumar Rath, J. 1. Aggrieved by and dissatisfied with the order dated 27-7-2004 passed by the learned Additional District Judge, Paralakhemundi in Title Appeal No. 8 of 2001, the instant petition is filed under Article 227 of the Constitution of India. By the said order, the learned trial Court allowed the application of the opposite party No. 1 filed under Order 41, Rule 27 read with Order 26 Rules 9 and 10, C.P.C. and appointed the Survey Knowing Commissioner. Opposite party No. 1 as plaintiff filed a suit for declaration of right, title, interest, possession over the suit land, eviction of defendant No. 1 and permanent injunction restraining the defendant No. 1 from interfering with the peaceful possession, in the court of the learned Civil Judge (Senior Division), Paralakhemundi, which is registered as T.S. No. 54 of 1999. The petitioner was defendant No. 1 in the suit. The suit was decreed. Challenging the judgment and decree dated 30-4-2001 and 18-6-2001 respectively passed by the trial Court, the plaintiff filed Title Appeal No. 8 of 2001 in the Court of the learned Additional District Judge, Parlakhemundi. During pendency of the appeal, an application under Order 41, Rule 27, C.P.C. read with Order 26, Rules 9 and 10, C.P.C. was filed by the appellant or appointment of Survey Knowing Commissioner. By order dated 27-7-2004, the learned lower appellate Court allowed the application. 2. Heard Mr. Rao, learned counsel for the petitioner and Mr. A.K. Tripathy, learned counsel for the opposite party No. 1. 3. The learned counsel for the petitioner submits that if the evidence on record is insufficient to arrive at a conclusion, then only power under Order 26, Rule 9 can be invoked. In the present case, finding of the learned trial Court is that there is no encroachment. The present move is only to nullify the judgment of the learned trial Court by collecting further evidence. Thus, the impugned order of the learned trial Court by collecting further evidence. Thus, the impugned order of the learned trial Court is liable to be quashed. The petitioner has filed the petition to patch up the lacuna. 4. Per contra, learned counsel for the opposite party No. 1 supports the impugned order. 5. Section 107 of C.P.C. deals with powers of the appellate Court. The same is quoted hereunder:- "107. Thus, the impugned order of the learned trial Court is liable to be quashed. The petitioner has filed the petition to patch up the lacuna. 4. Per contra, learned counsel for the opposite party No. 1 supports the impugned order. 5. Section 107 of C.P.C. deals with powers of the appellate Court. The same is quoted hereunder:- "107. Powers of Appellate Court -- (1) Subject to such conditions and limitations as many be prescribed, an Appellate Court shall have power:- (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Court on Courts of original jurisdiction in respect of suits instituted therein." 6. Sub-section (2) of Section 107 provides that the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. The words "nearby as may be" occurring in the said sub-rule imply that the appellate Court shall be vested with the powers which are vested on the Courts of original side so far as may be necessary for the interest of justice. (Judhistir Subudhi v. Balaji Financial Fund and another, 1987 (I) OLR 589). 7. Dealing with the powers of appellate Court to appoint Survey Knowing Commissioner, a Division Bench of this Court in the case of Bishnu Charan Sahu v. Paramananda Sahu and others, 1994 (I) OLR 205, in paragraphs of the report held as follows: "6. A survey-knowing commissioner is deputed for local investigation for the purpose of elucidating the question as to whether the disputed land appertains to a particular survey plot or plots. His report is evidence in the case and forms part of the record. Such evidence is usually collected during trial of a suit. In a given case if such evidence was essential but has not been led during trial of the suit, and it is sought to be led in appeal, it would be by way of additional evidence. His report is evidence in the case and forms part of the record. Such evidence is usually collected during trial of a suit. In a given case if such evidence was essential but has not been led during trial of the suit, and it is sought to be led in appeal, it would be by way of additional evidence. As to when either party to an appeal is entitled to produce additional evidence, the relevant provision is Order 41, Rule 27 of the Code. Under Clause 1(b) of the said rule the appellate Court has power to allow additional evidence not only if it requires such evidence to enable it to pronounce judgment but also for any other 'substantial cause'. An appellate Court may be able to pronounce judgment on the materials already on record but may still consider additional evidence necessary in the interest of justice to pronounce a satisfactory judgment. In such a case paramount consideration being ends of justice, admission of additional evidence is for meeting a 'substantial cause'. Furthermore if additional evidence sought to be introduced in appeal has a direct bearing on the main issue involved in the case, a party should normally be permitted to adduce additional evidence unless he is guilty of laches. If an appellate Court felt that the evidence of survey-knowing commissioner after local investigation, or opinion of a handwriting expert after comparison, is required in the interest of justice, there can be no legal impediment for appellate Court to permit admission of additional evidence and ultimately utilise the same for final disposal of the appeal. But in such a case the appellate Court has in compliance of Rule 28, to retain the appeal and either to take such evidence itself or direct the trial Court or even any other subordinate Court to take such evidence and send it to the appellate Court who can utilise the same while finally disposing of the appeal." 8. In Mahendranath Parida v. Purnananda Parida and others, AIR 1988 Orissa 248, the Court held that when the controversy is as to identification, location or measurement of the land or premise or object, local investigation should be done at an early stage so that the parties can be aware of the report of the Commissioner and can go to trial prepared. 9. The instant case may be examined on the anvil of the decisions cited supra. 9. The instant case may be examined on the anvil of the decisions cited supra. The plaintiff claims to be the owner of the land appertaining to plot No. 706 under khata No. 276 of mouza-Mohana, out of which, defendant No. 1 is said to have encroached upon a portion measuring 15 x 15 cubits. In the written statement, defendant No. 1 denied to have encroached upon any portion of the land out of plot No. 706. His stand is that he is the owner of the land bearing plot No. 707 over which he has constructed a residential house without encroaching upon the land of the plaintiff. The suit was dismissed by the learned trial court mainly on the ground that the plaintiff failed to establish any encroachment of the suit land. The learned lower appellate Court is right in coming to the conclusion that there appears to be a boundary dispute between the two parties. Thus, the dispute cannot be finally resolved without conducting measurement of the suit plot and adjoining plots by a Survey Knowing person. It was observed that whether two plots are adjacent or not, can be ascertained from the report of the Commissioner. The appellate Court has undoubtedly the power to appoint a Survey Knowing Commissioner when the controversy is as to identification, location or measurement of the land or premises or object to give quietus to the issue. For final and effective adjudication of dispute, it is necessary to appoint the Survey Knowing Commissioner for demarcation of the land. The petition, sans merit, is dismissed. There shall be no order as to costs. Petition Dismissed.