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2017 DIGILAW 123 (ORI)

Ram Chandra Sahoo v. Biswa Mohan Maharatha

2017-01-27

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. This petition challenges the order dated 17.4.2015 passed by the learned Additional Civil Judge (Jr. Divn.), Ranpur in C.S. No.14 of 2008. By the said order, learned trial court rejected the application of the plaintiff under Order 26 Rule 9 C.P.C. for appointment of survey knowing commissioner. 2. The petitioner as plaintiff instituted the suit for declaration of right, title and interest, recovery of possession and permanent injunction impleading the opposite party as defendant. The case of the plaintiff is that the suit schedule land has been recorded in his name in the sabik as well hal ROR. In the ceiling case no.536/76, lease was executed in his favour for an area of Ac.01.00 in the year 1976 by the Tahasildar, Ranpur. Thereafter, possession was delivered. A big plot of Govt. land was lying vacant to the southern side of the ‘B’ schedule land. He possessed an area of Ac.0.06 dec. of Govt. land and amalgamated the same to his lease hold land. Thereafter, he has constructed a house over the land. The Land Acquisition Officer, Bhubaneswar has acquired Ac.0.77 dec. of land from the southern side in the year 2003 for expansion of National Highway No.5. He is in possession of rest Ac.0.29 decimals of land. One Budhi Sahoo was the recorded owner of Plot Nos.570 and 571, area Ac.1.80 dec. which is adjacent to the northern side of the suit plot. Defendant has purchased an area of Ac.2.00 of land from Budhi Sahoo. In between plot no.570 and the National Highway No.5, the suit land situates. Since the defendant has no approach road to the National Highway, he approached the plaintiff to sale the western half of the balance land. He did not accede to such request. Since the defendant has created disturbance in his peaceful possession, he filed the suit. 3. Pursuant to issuance of summons, the defendant entered appearance and filed written statement denying the assertions made in the plaint. It is stated that the suit land is not identifiable. The rough sketch map given in the schedule of land is not in accordance with the proper scale and not supported by settlement map. He has constructed his residential house over plot no.570. The plaintiff is not in possession of an area Ac.0.29 dec. of land after acquisition of land. There is an approach road. The rough sketch map given in the schedule of land is not in accordance with the proper scale and not supported by settlement map. He has constructed his residential house over plot no.570. The plaintiff is not in possession of an area Ac.0.29 dec. of land after acquisition of land. There is an approach road. Thus the question of requesting the plaintiff to alienate the land does not arise. 4. While the matter stood thus, the plaintiff filed an application under Order 26 Rule 9 C.P.C. for deputation of a survey knowing commissioner. The defendant filed objection stating that the evidence of the defendant has not been closed and to protract the litigation, the petition has been filed. Learned trial court came to hold that the evidence of the plaintiff is closed. The case has been posted for cross-examination of defendant. If any survey knowing commissioner will be deputed, then it would amount to facilitating the plaintiff to collect evidence through the court. Such a petition cannot be effective before closure of evidence. Held so, learned trial court rejected the application. 5. Mr. P.K. Rath, learned counsel for the petitioner submitted that the dispute pertains to the measurement of the suit land. Learned trial court committed a manifest illegality in rejecting the application under Order 26 Rule 9 C.P.C. holding that the evidence of the plaintiff is closed. The case has been posted for cross-examination of defendant. If any survey knowing commissioner will be deputed, then it would amount to facilitating the plaintiff to collect evidence through the court. A survey knowing commissioner can be appointed at any stage of the suit. Since the dispute pertains to identification of land, learned trial court is not justified in rejecting the petition. 6. Per contra, Mr. S. Mishra, learned counsel for the opposite party submitted that there is no infirmity in the order passed by the court below. 7. In Bhabesh Kumar Das v. Mohan Das Agrawal, 2015 (II) CLR 603, this Court held as under: “In the case of Prasanta Kumar Jena vs. Choudhury Purna Ch. Das Adhikari, 99 (2005) CLT 720, the learned Single Judge of this Court held that an application under Order 26 Rule 9 C.P.C. can be considered only after closure of the evidence when the court finds difficult to pass an effective decree on the existing evidence. Das Adhikari, 99 (2005) CLT 720, the learned Single Judge of this Court held that an application under Order 26 Rule 9 C.P.C. can be considered only after closure of the evidence when the court finds difficult to pass an effective decree on the existing evidence. Relying on the said decision, learned Single Judge of this Court set aside the order of appointment of Survey Knowing Commissioner for measurement and demarcation of the land passed by the learned trial court. The same was challenged before this Court in the case of Ram Prasad Mishra Vrs. Dinabandhu Patri and another. The Bench speaking through Mr. V. Gopala Gowda, C.J.(as he then was) held that the learned Single Judge has interfered with the order passed by the learned trial court in appointing the Survey Knowing Commissioner ignoring the decision of this Court in the case of Mahendranath Parida Vrs. Purnananda Pardia and others, AIR 1988 ORISSA 248. Thus, the decision in the case of Prasanta Kumar Jena (supra) has been impliedly overruled by the Division Bench of this Court. In Mahendranath Parida (supra), 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. In Ramakant Naik and others vs. 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. On a reading of Order 26 Rule 9 C.P.C., it is manifest that the stage of appointment of Survey Knowing Commissioner has not been prescribed. When the legislature in its wisdom has not prescribed the stage of appointment of Survey Knowing Commissioner, the power of the Court to appoint the Survey Knowing Commissioner can not be cabined, cribbed or confined.” 8. When the legislature in its wisdom has not prescribed the stage of appointment of Survey Knowing Commissioner, the power of the Court to appoint the Survey Knowing Commissioner can not be cabined, cribbed or confined.” 8. As has been held by this Court in Bhabesh Kumar Das cited supra, when the legislature in its wisdom has not prescribed the stage of appointment of survey knowing commissioner, the power of the Court cannot be cabined, cribbed or confined. The survey knowing commissioner at any stage of the suit provided the pre-conditions enumerated in Order 26 Rule 9 C.P.C. exists. 9. In view of the above, the order dated 17.4.2015 passed by the learned Additional Civil Judge (Jr. Divn.), Ranpur in C.S. No.14 of 2008 is quashed. The learned trial court shall decide the application for appointment of survey knowing commissioner on merit. The petition is allowed. No costs.