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2016 DIGILAW 1141 (ORI)

Prafulla Sethi v. Kshyama Sethi

2016-11-23

A.K.RATH

body2016
JUDGMENT : A.K. RATH, J. 1. This petition challenges the order dated 4.5.2016 passed by the learned Senior Civil Judge, Kendrapara in C.S. No. 435 of 2011, whereby and whereunder, the learned trial court rejected the application of the plaintiffs under Order 26, Rule 9 of C.P.C. to depute a survey knowing commissioner for measurement of the land. 2. The petitioners as plaintiffs instituted the suit for declaration of title, restoration of possession and permanent injunction impleading the opposite parties as defendants. The case of the plaintiffs is that the suit plot no. 1251 is the ancestral homestead land of the plaintiffs and proforma defendants. In O.L.R. Case No. 55 of 2005, land was mutated in their favour. To its north plot no. 1252 situates. The same belongs to defendants. When the defendants threatened to encroach upon the suit land, they filed Demarcation Case No. 1 of 2011 before the Tahasildar, Kendrapara. The Tahasil Amin demarcated the suit plot. While the matter stood thus, the defendants forcibly encroached upon a portion of the suit land and constructed a thatched house. The defendants have no semblance of right, title and interest over the same. 3. Pursuant issuance of summons, defendant nos. 2 to 4 entered appearance and filed written statement denying the assertions made in the plaint. It is stated in paragraph-6 of the written statement that the plaintiffs filed demarcation case. The land was measured by the Tahasil Amin, who managed to take signature of the defendants on a piece of paper and at the instance of the plaintiffs, report was submitted. Thereafter defendant no. 2 applied for mutation of the land. The Tahasildar deputed the same Amin. The Amin without making further measurement submitted a report confirming his previous report. 4. While the matter stood thus, the plaintiffs filed an application under Order 26 Rule 9 C.P.C. for deputation of a Civil Court Commissioner to determine whether the suit land pertains to plot no. 1251, the defendants filed objection to the same. The learned trial court rejected the application. 5. Heard Mr. R.K. Kar, learned counsel for the petitioners and Mr. S.C. Das, learned counsel for the opposite parties 2 to 4. 6. Mr. Kar, learned counsel for the petitioners submitted that the dispute pertains to identification and measurement of land. 1251, the defendants filed objection to the same. The learned trial court rejected the application. 5. Heard Mr. R.K. Kar, learned counsel for the petitioners and Mr. S.C. Das, learned counsel for the opposite parties 2 to 4. 6. Mr. Kar, learned counsel for the petitioners submitted that the dispute pertains to identification and measurement of land. The learned trial court committed a manifest illegality in rejecting the application for appointment of a Survey Knowing Commissioner. Mr. Das, learned counsel for opposite parties 2 to 4, on the other hand, supported the order. 7. In Mahendranath Parida vs. Purnananda Parida and others, AIR 1988 Orissa 248, this 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. 8. The plaintiffs filed a Demarcation Case No. 1 of 2011 before the Tahasildar, Kendrapara for demarcation of the land. The Tahasildar deputed an Amin. The Amin demarcated the land. Again defendant nos. 2 to 4 made an application before the Tahasildar, Kendrapara for demarcation of the land. The Amin demarcated the land for the second time. When the Tahasil Amin has demarcated the land twice, the application filed by the plaintiffs for deputation of the survey knowing commissioner is a ruse. 9. The petition is dismissed. No costs.