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2016 DIGILAW 1195 (ORI)

Niranjan Tarai v. Nilamani Sutar

2016-12-05

A.K.RATH

body2016
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 21.9.2016 passed by the learned Civil Judge (Junior Division), Aul in Title Suit No.369 of 1999 whereby and whereunder the application filed by the plaintiffs under Order 26 Rule 9 read with Section 151 CPC for deputation of a survey knowing commissioner has been rejected. 2. The petitioners as plaintiffs instituted Title Suit No.369 of 1999 in the court of the learned Civil Judge (Junior Division), Aul for declaration of right, title and interest, for declaration the Hal Map wrong and for permanent injunction impleading opposite parties as defendants. Pursuant to issuance of summons, defendant no.1 entered appearance and filed a written statement denying the assertions made in the plaint. After closure of evidence, the plaintiffs filed an application under Order 26 Rule 9 read with Section 151 CPC to depute a survey knowing commissioner to measure the suit land as well as the land of the defendants and to relay the maps. It is stated that the area of the suit land is Ac.0.22 dec. in both Sabik and Hal settlement. But then, the area has been reduced to 2000 sq. links from the eastern side of the suit plot in Hal Map and amalgamated in Plot No.366, which is the land of the defendant no.1. In order to ascertain whether the area of the suit Hal Map has been reduced or not and whether the same has been amalgamated with the land of the defendants and to relay the Sabik and Hal Map, it is required to depute a survey knowing commissioner. The defendants filed their objection contending, inter alia, that the plaintiffs are well aware of the reduction of the Hal Map. Besides the same, the plaintiffs have admitted that the suit land and the land of the defendants had been measured thrice. The evidence shows that there is no obstruction from the side of the defendants. From Ext.5 series, Amin Report in Demarcation Case No.19/1999, it is evident that the area of the suit Hal Map has been reduced. The Amin report has been admitted in evidence. There is no ambiguity in the same. Thus there is no need to depute a survey knowing commissioner. The application has been filed to protract the litigation. 3. From Ext.5 series, Amin Report in Demarcation Case No.19/1999, it is evident that the area of the suit Hal Map has been reduced. The Amin report has been admitted in evidence. There is no ambiguity in the same. Thus there is no need to depute a survey knowing commissioner. The application has been filed to protract the litigation. 3. Learned trial court came to hold that the report of the Amin in Demarcation Case No.19/1999 has been marked as Ext.5 series from the side of the plaintiffs and also marked as Ext.E series from the side of the defendants. The report clearly suggests that the area of the suit Hal Map has been reduced and does not tally with the Sabik Map. The report of the Amin also reveals that he put pillars on the boundary in presence of both the parties and the demarcation was made smoothly. There is clear and cogent evidence regarding reduction of area in the suit Hal Map and the demarcation was made very smoothly in presence of both the parties. Thus appointment of Commissioner will amount to collection of evidence. 4. Heard Mr.Mahadev Mishra, learned Senior Advocate along with Ms. Mamata Mishra, learned counsel for the petitioners and Mr.Ramesh Kumar Sahu, learned counsel for the opposite parties. 5. Mr. Mishra, learned Senior Advocate for the petitioners, submitted that the dispute pertains to reduction of area of the plaintiffs and the amalgamation of the said area with the land of the defendants. Since the dispute pertains to measurement and location of the land, learned trial court is not justified in rejecting the application. He relied on the decision of this Court in the case of Sri Bhabagrahi Pati v. Smt. Basantilata Pati, 2016 (I) CLR 637. 6. Per contra, Mr. Sahu, learned counsel for the opposite parties, submitted that after closure of evidence, an application has been filed. Further, in Demarcation Case No.19/1999, the Amin was appointed. The report of the Amin has been marked as exhibits from both the sides. There is no ambiguity in the same. As such, learned trial court is justified in rejecting the application. 7. In Mahendranath Parida v. Purnananda Parida and others, AIR 1988 Orissa 248, this Court held that the Court may appoint a survey knowing commissioner, if dispute pertains to area of the land or identification or location or measurement of the land. There is no ambiguity in the same. As such, learned trial court is justified in rejecting the application. 7. In Mahendranath Parida v. Purnananda Parida and others, AIR 1988 Orissa 248, this Court held that the Court may appoint a survey knowing commissioner, if dispute pertains to area of the land or identification or location or measurement of the land. The same view was taken in Sri Bhabagrahi Pati (supra). 8. The instant case may be examined on the anvil of the decisions cited supra. In Demarcation Case No.19/1999, the Amin measured the land in presence of both the parties. The said report has been marked as exhibits by both the parties. This Court fails to understand as to why the application was filed by the plaintiffs when the report of the Amin has been marked as Ext.5 series from their side. The defendants also rely on the same and marked the same as Ext.E series. Learned trial court came to hold that the Amin has measured the land in presence of both the parties and the said report reveals that the area of the Hal Map has been reduced and does not tally with the Sabik Map. After closure of evidence, the petition has been filed to protract the litigation. The petition is a ruse. Learned trial court has rightly rejected the application of the plaintiffs 9. The reasons assigned by the learned trial court cannot be said to be perfunctory or flawed warranting interference of this Court under Article 227 of the Constitution. The petition, sans merit, deserves dismissal. Accordingly, the same is dismissed.