Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 295 (ORI)

Nilambar Sahu v. Jhuni Devi

2017-03-17

A.K.RATH

body2017
JUDGMENT : DR. A.K.RATH, J. 1. This petition challenges the orders dated 31.7.2014 and 3.9.2014 passed by the learned Civil Judge (Junior Division), Buguda in C.S.No.4 of 2010. By the said orders, the learned trial court rejected the application of the defendants under Order 26 Rule 9 C.P.C. for appointment of Survey Knowing Commissioner for demarcation of the suit land. 2. Opposite parties 1 and 2 as plaintiffs instituted the suit for permanent injunction impleading the petitioners and opposite party no.3 as defendants. Pursuant to issuance of summons, the defendants entered appearance and filed written statement and counter claim. While the matter stood thus, the defendants filed an application under Order 26 Rule 9 C.P.C. for appointment of Survey Knowing Commissioner for demarcation of the land. By order dated 12.3.2012, the learned trial court rejected the application holding inter alia that the evidence has not begun and granted liberty to the defendants to file a petition after closure of evidence, if the occasion would so arise. Thereafter the defendants filed another application on 9.7.2014. It is stated that plaintiff no.1 has purchased a piece of land from defendants 1 and 2 and other legal heirs of recorded tenant Narayan Sahu measuring an area 22 X 60 cubits by means of a registered sale deed, which is equivalent to 33’ X 98’ i.e. Ac.0.068, but then they have construed a house over an encroached area. The plaintiffs instituted the suit to garb the public land as well as the lands of the defendants and others. The plaintiffs filed objection to the same. The learned trial court came to hold that evidence of the defendants shows that the suit land has been demarcated by the Government agency. The sketch map and stress map have been marked as exhibits by the plaintiffs without objection. Sufficient evidence is available on record to decide the lis. This petition has been filed to protract the litigation. Held so, the learned trial court rejected the application. Again an application was filed on 21.8.2014 for appointment of Survey Knowing Commissioner by the defendants. The plaintiffs filed objection. By order dated 3.9.2014, the trial court rejected the same. 3. Heard Mr.T.K.Mishra, learned Advocate for the petitioners and Mr.S.S.Rao, learned Advocate for the opposite parties 1 and 2. 4. Mr.Mishra, learned Advocate for the petitioners submitted that the dispute pertains to identification and measurement of the land. The plaintiffs filed objection. By order dated 3.9.2014, the trial court rejected the same. 3. Heard Mr.T.K.Mishra, learned Advocate for the petitioners and Mr.S.S.Rao, learned Advocate for the opposite parties 1 and 2. 4. Mr.Mishra, learned Advocate for the petitioners submitted that the dispute pertains to identification and measurement of the land. The plaintiffs have encroached upon a portion of the land of the defendants as well as Government land. Earlier application filed by the defendants for appointment of Survey Knowing Commissioner was rejected as the same was premature. Liberty was granted to them to file application after closure of evidence. Thereafter the defendants filed an application. The learned trial court has committed a manifest illegality and impropriety in rejecting the same. 5. Per contra, Mr.Rao, learned Advocate for the opposite parties 1 and 2 submitted that the defendants filed successive applications for appointment of Survey Knowing Commissioner. The learned trial court has assigned the reasons and rejected the same. He further submitted that the land has been demarcated by the Government agency and the sketch map and stress map have been marked as exhibits by the plaintiffs without objection. 6. 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. 7. In Ramakant Naik and others Vs. Bhanja Dalabehera, 2015 (Supp.-II) OLR-418, 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. 8. The instant case may be examined on the anvil of the decisions cited supra. By order dated 12.3.2012, the learned trial court rejected the application of the plaintiffs for appointment of Survey Knowing Commissioner on the ground that evidence has not begun and granted liberty to the petitioners to file application after closure of evidence. 8. The instant case may be examined on the anvil of the decisions cited supra. By order dated 12.3.2012, the learned trial court rejected the application of the plaintiffs for appointment of Survey Knowing Commissioner on the ground that evidence has not begun and granted liberty to the petitioners to file application after closure of evidence. While the matter stood thus, the defendants filed an application seeking the same relief. The learned trial court came to hold that the land has been demarcated by the Government agency. Further the sketch map and stress map have been marked as exhibits on behalf of the plaintiffs without any objection. Evidence is available on record to decide the lis. When the land has been measured by the Government agency and the sketch map and stress have been marked as exhibits by the plaintiffs without objection, there is no need to appoint Survey Knowing Commissioner. 9. There being no illegality or infirmity in the impugned orders passed by the learned trial court, this Court is not inclined to interfere with the same. The petition is dismissed. No costs.