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2016 DIGILAW 293 (ORI)

Hemalata Sahu v. Muli @ Murali Sethi

2016-04-18

A.K.RATH

body2016
JUDGMENT : A.K. Rath, J. Challenging the order dated 27.4.2010 passed by the learned Civil Judge (Sr. Divn.), Bhubaneswar in C.S. No. 569 of 2006, the instant petition has been filed under Article 227 of the Constitution of India. By the said order, learned trial court allowed the application of the plaintiffs for deputing a survey knowing commissioner. 02. The opposite party nos.1 and 2 as plaintiffs instituted the suit for declaration of title and for permanent injunction impleading the petitioner as well as opposite party nos.3 to 5 as defendants. The case of the plaintiffs is that the land appertaining to Hal Plot No. 490, measuring an area Ac.0.785 dec., Plot No.495 measuring an area Ac.0.104 dec. and Plot No. 504 measuring an area Ac.0.195 dec. appertaining to Khata No. 25 of mouza-Bhubaneswar Sahara, Unit No.21, originally belonged to Kanduri Sethi, S/o-Mala Sethi, Muli Sethi, S/o-Late Panu Sethi. They were the exclusive owner in possession of the aforesaid land. In Hal Khata the total area of aforesaid three plots was Ac.1.084 dec. Kanduri and Muli sold Ac.0.858 dec. of land to different persons under different registered sale deeds. After sale of Ac.0.858 dec. of land to different persons, Kanduri and Muli remained in possession of Ac.0.150 dec. of land out of Plot No.490, Ac.0.45 dec. of land out of Plot No.504 and Ac.0.31 dec. of land out of Plot No.495. After the death of Kanduri, the plaintiffs and defendant nos.3 and 4 became the owner in possession of Ac.0.226 dec. of land. The defendant no.1 who has no right, title, interest and possession over the suit land taking advantage of the fact the suit land is lying vacant, is threatening to make construction of boundary wall encroaching upon the suit land. On 6.6.2006, the plaintiffs received a notice from the office of the Tahasildar, Bhubaneswar in Demarcation Case No.167/06. On 7.6.2006, the Govt. Amin could not demarcate the suit land. But on 8.6.2006, the defendant no.1 and her husband with the help of some antisocials forcible fixed the stone fixers on the boundary line and started digging earth for construction of the boundary wall. When the plaintiffs protested against the high handed action of the defendant no.1 and her husband, they had stated that the suit land has been recorded in their names in settlement case no.246/88/502/89. When the plaintiffs protested against the high handed action of the defendant no.1 and her husband, they had stated that the suit land has been recorded in their names in settlement case no.246/88/502/89. It is further stated that the defendant no.1 by virtue of the order passed in R.P. Case Nos.246/88 and 502/89 has wrongly got the suit land recorded in her name in mutation khata No.190/253. The defendant no.1 has no semblance of right, title and interest over the suit land. Though the land was wrongly recorded, but the defendant no.1 is not in possession of the land. The plaintiffs and defendant nos.3 and 4 are all along in possession of the same. The land measuring Ac.0.050 dec. appertaining to mutation plot nos.526/769/1072, mutation khata no.190/253 is the part of Hal Plot No.490 belong to the plaintiffs and defendant nos.3 and 4. The settlement authorities without verifying the field position have wrongly carved out Ac.0.050 dec. of land from hal plot no.490 and have wrongly recorded the same in the name of the defendant no.1. 03. Pursuant to issuance of summons, the defendant nos.1 and 2 entered appearance and filed their respective written statement denying the assertions made in the plaint. While the matter stood thus, an application under Order 26 Rule 9 C.P.C. filed by the plaintiffs for appointment of a survey knowing commissioner to ascertain as to whether the suit land is a part of Hal Plot No.490 corresponding to Sabik Plot No.325 or the suit land is the part of the Hal Plot No.769, corresponding to Sabik Plot No.340, whether the mutation plot no. 526/769/1072 under Mutation Khata No.190/253 situate in mouza-Bhubaneswar Sahar Unit No.21, Pokhariput has been carved out of Hal Plot No.490 or out of Hal Plot No.769 and whether map in respect of Hal Plot No.490 and 769 has been correctly prepared according to the sabik map. The defendant nos.1 and 2 filed separate objections to the same. Learned trial court came to hold the plaintiffs filed the present suit for declaration of right, title and interest over the suit land and that the suit land is part and parcel of hal plot No.490; whereas it is contended by the defendant no.2 that the suit land is part and parcel of hal plot no.769 corresponding to sabik plot no.340. According to the petitioner, the suit plot no.490 corresponds to sabik plot no.325. According to the petitioner, the suit plot no.490 corresponds to sabik plot no.325. Having held so, learned trial court allowed the said application. 04. Heard Mr. S.K. Sarangi, leaned counsel for the petitioner and Mr. R.K. Routray, learned counsel for the opposite party nos.1 and 2. 05. Order 26 Rule 9 C.P.C. 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 : Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.” 06. In Mahendranath Parida vrs. 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. 07. In Ramakant Naik and others Vrs. Bhanja Dalabehera, 2015 AIR CC 1724 (ORI), this Court held that 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. 08. The instant case be examined on the anvil of the decision cited supra. The learned trial court in a well discussed order came to hold that this matter of controversy needs to be resolved by deputation of a civil court commissioner, who can visit the suit land, measure the suit land physically relying on the sabik map with hal map and come to find out as to whether the suit land pertains to hal plot no.490 or 769. Thus, deputation of civil court commissioner to the spot is essential for elucidating the matter in dispute in the suit. The view taken by the learned trial court cannot be said to be perfunctory or flawed. 09. There being no perversity or illegality in the order dated 27.4.2010 passed by the learned Civil Judge (Sr. Divn.), Bhubaneswar in C.S. No. 569 of 2006, this Court is not inclined to interfere with the same. Accordingly, the petition is dismissed.