Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 757 (ORI)

Halu @ Haluri Jena v. Manmohan Das

2017-07-19

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. By this application under Article 227 of the Constitution, challenge is made to the order dated 19.3.2014 passed by the learned Civil Judge (Junior Division), Khurda in C.S. No.52 of 2006 whereby and whereunder learned trial court accepted the report of the survey knowing commissioner. 2. Opposite party no.1 as plaintiff instituted the suit for declaration of right, title and interest as well as mandatory injunction impleading the petitioner and opposite party no.2 as defendants. The defendants filed a written statement denying the assertions made in the plaint. While the matter stood thus, the plaintiff filed an application under Order 26 Rule 9 CPC for deputation of a survey knowing commissioner to ascertain as to whether the suit land is a part and parcel of the plaintiff’s homestead suit plot no.1378 or defendants’ homestead plot no.1379. Learned trial court allowed the same and deputed a survey knowing commissioner. The commissioner submitted the report along with field book and map. The defendants filed an objection contending, inter alia, that the commissioner has not measured the land from fixed point. He had taken an imaginary fixed point and measured the land. Learned trial court overruled the objection filed by the defendants and accepted the report. 3. Heard Mr. Mohapatra, learned counsel for the petitioner and Mr. Mishra, learned counsel for the opposite party no.1. 4. Mr. Mohapatra, learned counsel for the petitioner, submits that the commissioner has not measured the land from fixed point. He has taken an imaginary fixed point and measured the land. In view of the same, learned trial court is not justified in accepting the report of the commissioner. 5. Per contra, Mr. Mishra, learned counsel for the opposite party no.1, submits that both the parties have agreed that the land should be measured from the imaginary point. Thus no fault can be found from the report of the commissioner. 6. In Badan Prasad Jaswal v. Bira Khamari and another, AIR 1990 Orissa 32, the report of the civil court commissioner having been accepted, the petitioner approached this Court. A contention was raised that since the very report of the commissioner shows that he has not taken the measurement from any fixed point and taken such measurements from two imaginary points set up by him, the report should have been held to be not of any worth and should have been discarded. A contention was raised that since the very report of the commissioner shows that he has not taken the measurement from any fixed point and taken such measurements from two imaginary points set up by him, the report should have been held to be not of any worth and should have been discarded. The report revealed that it had no fixed point near the tri-junction of plots though not far away from the disputed plot, yet since the line was not properly visible from it, it was not possible to carry out the measurement with reference to such fixed point. He set up two Mustakil Chandra as ‘ka’ and ‘kha’ near the disputed plots with the help of the map and established such points in ‘Khaka’. The measurement was carried out with reference to such fixed points set up by the commissioner. This Court held that 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. 7. In the wake of the aforesaid, the order dated 19.3.2014 passed by the learned Civil Judge (Junior Division), Khurda in C.S. No.52 of 2006 is quashed. Learned trial court shall appoint a fresh commissioner for measurement of the disputed land. The petition is allowed.