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2017 DIGILAW 391 (ORI)

Jadumani Das v. Balaram Nayak

2017-04-11

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. 1. This petition challenges the order dated 21.11.2015 passed by the learned Civil Judge (Jr. Division), Kendrapara in C.S.No.55 of 2008. By the said order, the learned trial court accepted the report of the Amin Commissioner. 2. The opposite party as plaintiff instituted the suit for declaration of right, title, interest, permanent injunction and demarcation of the suit land impleading the petitioners as defendants. After closure of evidence, the plaintiff filed an application for deputation of an Amin Commissioner. The same was allowed. The Amin Commissioner visited the spot and submitted a report. He was subject to extensive cross-examination by the defendants. The learned trial court assigned the following reasons and accepted the report: “Upon examination of the report prepared by the Civil Court Commissioner, it is observed that the Commissioner has explained in detail regarding the difficulties which prevented him from commencing the measurement of disputed land from the fixed starting point like bi junction point and tri junction point. The field Book and the report of the Commissioner tally with each other so as to sufficiently prove that the fixed point namely station Point-A have been duly ascertained by the Civil Court Commissioner. It is observed that during the course of examination of C.W.1, the learned counsel for the defendants never raised the question as to the propriety of measurement done to ascertain ‘A’ starting point, by the Civil Court Commissioner. In such facts and circumstances, this court sees no justification in rejecting the report furnished by the Civil Court Commissioner. No serious discrepancy is observed in the document prepared by the Civil Court Commissioner at the instance of this Court.” 3. Mr. Acharya, learned Advocate for the petitioners submits that in spite of availability of fixed points the Commissioner has measured the land from imaginary points. In view of the same, the report should be rejected. Per contra, Mr. Mishra, learned Advocate for the opposite party submits that the Commissioner has assigned the reasons for not taking the measurement on the fixed points. In cross-examination, the Commissioner stated that he was prevented for taking measurement of the disputed land from the fixed points on the ground that the fixed points like bi junction point and tri junction point is at a far place and the both the parties agreed that measurement should be done from the fixed points. In cross-examination, the Commissioner stated that he was prevented for taking measurement of the disputed land from the fixed points on the ground that the fixed points like bi junction point and tri junction point is at a far place and the both the parties agreed that measurement should be done from the fixed points. The learned trial court is justified in accepting the report. 4. In Badan Prasad Jaswal Vrs. Bira Khamari and another, AIR 1990 Ori 32 , the report of the Civil Court Commissioner having been accepted, the plaintiff filed a revision before this Court. A contention was raised that the Commissioner had not taken the measurement from any fixed points. Such measurements were taken from two imaginary points set up by him. This Court held thus:- “The procedure adopted by the Commissioner was extraordinary since fixed points in survey operations are paramount fixtures and if the fixed points were not available near about the disputed plot, the Commissioner was to find out other permanent structures such as the temples, old trees or the like near about the plot and take the measurement and if that was not possible, then to carry out the measurement commencing it from the fixed point available and reach the disputed plot. Besides, if the fixed point was available but the line was not visible from such point to the disputed plot, the survey should not have been made by chain method but should have been made by other method of survey suitable for the purpose. In no circumstances, the commissioner should have set up imaginary points with reference to the map by which process there cannot be any guarantee of the accuracy of the measurement.” 5. In view of the above, the order dated 21.11.2015 passed by the learned Civil Judge (Jr.Division), Kendrapara is quashed. The learned trial court shall appoint an Amin Commissioner for fresh measurement of the land. The petition is allowed.