Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 98 (ORI)

Ramakant Naik v. Bhanja Dalabehera

2015-02-13

A.K.RATH

body2015
JUDGMENT A.K. Rath, J. 1. The instant challenge is to laciniate the order dated 11.12.2008 passed by the learned Civil Judge (Senior Division), Aska in C.S. No. 71 of 2005 rejecting the application of the petitioners to depute a survey knowing Commissioner or the Tahasildar to demarcate the suit land. 2. The opposite party as plaintiff instituted C.S. No. 71 of 2005 in the court of learned Civil Judge (Senior Division), Aska seeking declaration of right, title and interest, recovery of possession and for permanent injunction to restrain the defendants from entering upon the suit land in respect of Hal Survey Nos. 659, 660, 661 and 719 of village Saranpanka, appertaining to Khata No.72/23, Tahasil Sorada, which corresponds to Sabik Survey No.668/1-A. The defendants in their written statement have pleaded that in a ceiling surplus proceeding the lands appertaining to Survey No.668/2 have been settled in their favour. The Tahasildar has demarcated the suit lands and gave delivery of possession in their favour. It is further pleaded that Sabik Survey No.668/1-A is different from Sabik Survey No.668/2. 3. While the matter stood thus, the defendants filed an application under Order 26 Rule 9 CPC to appoint the survey knowing Commissioner or the Tahasildar to demarcate the lands covered under road Survey No.668/1-A and Survey No.668/2. The same was objected to by the plaintiff. By order dated 11.12.2008, learned trial Court rejected the said application holding, inter alia, that since the suit land has been demarcated by the Tahasildar in presence of the witnesses in a demarcation proceeding much prior to the institution of the suit, there is no necessity to appoint a survey knowing Commissioner for fresh measurement. 4. Heard Ms. D. Mohapatra, learned counsel for the petitioner and Mr. L. Samantray, learned counsel for the opposite party. 5. Order 26 Rule 9 C.P.C. deals with Commissions to make local investigations. The same is quoted hereunder:- “9. Commissions to make local investigations- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court.” 6. Issuance of a Commission for local investigation is the discretion of the Court. While considering the prayer for appointment of Commission, the Court must apply its mind to the facts and circumstances of the case and pass order. No straight jacket formula can be laid down. Before issuance of Commission, the Court must be satisfied that there is prima facie case in favour of the applicant. 7. In Mahendranath Parida vs. Purnananda Parida and others, (1987) 64 CLT 722, it was 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 are aware of the report of the Commissioner and go to trial prepared. The said decision was subsequently followed in Ram Prasad Mishra vs. Dinabandhu Patri and another, 2012 (Supp. II) OLR, 520. 8. In the instant case, the identities of the plots are not in dispute. In the written statement as well as the petition under Order 26 Rule 9 C.P.C., it is stated that the defendants do not claim any right over the lands covered under Survey No.668/1-A. The plaintiffs also do not claim any right, title and interest over the Sabik Survey No.668/2. The trial Court on perusal of the Amin’s report came to hold that the land was demarcated by the Tahasilar in a demarcation proceeding in presence of the plaintiff, defendants and local police. 9. In view of the fact that the identities of the plots are not in dispute and both the parties claimed their right, title and interest over different plots, the learned trial Court was justified in rejecting the application. There being no error apparent on the face of the impugned order, this Court is not inclined to interfere with the same. Accordingly the writ petition is dismissed.