Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 169 (ORI)

Gopal @ Sankarshan Sathpathy v. State of Orissa

2017-02-15

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 27.07.2016 passed by the learned Addl. Civil Judge (Senior Division), Balasore in C.S. No.455 of 2011-I/08 of 2013. By the said order, learned trial court rejected the application of the plaintiffs under Order 26 Rule 9 CPC for appointment of commission to make investigation and report. 2. The petitioners as plaintiffs instituted C.S. No.455 of 2011-I/08 of 2013 in the court of the learned Addl. Civil Judge (Senior Division), Balasore for declaration of right, title and interest and permanent injunction impleading opposite parties as defendants. They filed an application under Order 26 Rule 9 CPC for deputation of a commissioner to make investigation and report on the questions mentioned below; “1. Are the M.S Plot No.57 and 58 under M.S. Khata No.48 related to C.S. Plot Nos.53 and 54 under C.S. Khata No.15 ? 2. Whether A0.008 Sq. links out of A0.17 decs. Northern wide of M.S Plot No.59 under M.S Khata No.108 is part of M.S Plot Nos.57 and 58 under M.S Khata No.48 in corresponds to C.S Plot No.53 and 54 under C.S. Khata No.15 (to be shown in sketch relay map) ?” 3. Defendants 3 to 7 objected to the said petition. Learned trial court assigned the following reasons and rejected the petition. “Perused the petition, objection as well as pleading of the parties. With regard to the M.S Khata No.48 corresponds to C.S. Khata No.15, Plot No.53 and 54 or not, can be determined by simply filing the plot index. It is also not disputed by the defendants that C.S. Plot No.53 and 54 corresponds to M.S. Plot No.57 and 58. So, there is no requirement for appointment of commissioner with regard to question No.1. So far as question No.2 is concerned, the plaintiffs claimed their 800 sq. links towards the northern side of M.S Plot No.59 which is part of M.S Plot No.57 and 58 of M.S. Khata No.48 and it is further claimed that the above plots correspond to C.S. Plot No.53 and 54 under C.S. Khata No.15. But on perusal of the plaint it is found that no where the plaintiffs have claimed that M.S Plot No.59 corresponds to C.S. Plot No.53 and 54, rather the plaintiffs vide Lot-2 of A-schedule claimed that M.S Plot No.59 corresponds to C.S. Plot No.69, Khata No.42. But on perusal of the plaint it is found that no where the plaintiffs have claimed that M.S Plot No.59 corresponds to C.S. Plot No.53 and 54, rather the plaintiffs vide Lot-2 of A-schedule claimed that M.S Plot No.59 corresponds to C.S. Plot No.69, Khata No.42. So, the question No.2 is nothing but an arbitrary question which has no nexus with the relief claimed by the plaintiffs and further more the question No.2 can be resolved by filing the C.S. and M.S maps. Hence, the sending of advocate commissioner is nothing but futile exercise of the power of the court and as such the same is rejected.” 4. Heard Mr.A. Mishra on behalf of Mr.Debaraj Mohanty learned counsel for the petitioners, learned Addl. Standing Counsel for the State and Mr. Mohanty, learned counsel for the opposite parties 3 to 7. 5. 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. 6. The instant petition may be examined on the anvil of the decision cited supra. 7. With regard to questions formulated by the plaintiffs, this Court is of the opinion that the plaintiffs can prove the same by adducing evidence. The application is a ruse. Accordingly, the petition is dismissed. Learned Addl. Civil Judge (Senior Division), Balasore is directed to dispose of C.S. No.455 of 2011-I/08 of 2013 within a period of six months from today.