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2017 DIGILAW 983 (ORI)

Kalpana Singh v. Shakuntala Mohanty

2017-09-04

BISWANATH RATH

body2017
ORDER 4.9.2017. Heard Sri S.K. Nayak, learned Counsel for the petitioner and Sri P.K. Rath, learned Counsel for the opposite party. This Civil Misc. Petition involves an order rejecting the objection of the present petitioner in the matter of acceptance of the Survey Knowing Commissioner’s report. Challenging the impugned order, Sri Nayak, learned Counsel for the petitioner submitted that law required for measurement at the instance of the Survey Knowing Commissioner is dependent on the measurement taking into consideration the fixed point and further in absence of any fixed point following the direction of this Court in Badan Prasad Jaswal vrs. Bira Khamari & another reported in 1989 (II) OLR 161. It is thus contended that in absence of a fixed point, it was incumbent upon the Survey Knowing Commissioner to find out other permanent structures, such as temples, old trees or the like near about the plot and to take measurement accordingly. It is under the above premises, Sri Nayak, learned Counsel for the petitioner submitted that the impugned order is bad in law not only for the non-observance of the compulsory requirements by the Survey Knowing Commissioner but also being contrary to the decision of this Court referred herein above. Sri Rath, learned Counsel for the opposite party, on the other hand, referring to the clear observations of the Survey Knowing Commissioner in the report submitted that pursuant to the direction, considering the application under Order 26 Rule 9 of C.P.C. that the Commissioner not finding any fixed point compelled to take other aspect into measurement. Sri Rath thus contended that there has been no infirmity in the measurement process taken up by the Survey Knowing Commissioner. Considering the rival contentions of the parties, this Court finds, the Survey Knowing Commissioner was deputed for the purpose of measurement as well as identification on allowing an application under Order 26 Rule 9 of C.P.C., the Survey Knowing Commissioner accordingly submitted the report indicating therein that the measurement and the identification have been undertaken not only in absence of non-cooperation of the petitioner but in absence of any fixed point and thus taking into consideration the Sarada Water Land, the best material available for the purpose. Perusal of the report, there is a clear disclosure that the report has been prepared involving measurement process and identification on the particular issue but however without finding any fixed point. Perusal of the report, there is a clear disclosure that the report has been prepared involving measurement process and identification on the particular issue but however without finding any fixed point. Taking into consideration the decision of this Court in the matter of requirement of Survey Knowing Commissioner for the purpose of measurement and identification, this Court dealing with the question as to whether the measurement should be taken taking into consideration the fixed point in the survey operation and in absence of any fixed point, the procedure required to be followed, this Court finds, the Division Bench of this Court in the reported decision, vide 1989 (II) OLR 161 decided as follows : “..... 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......” It is under the premises and for the clear observations in the impugned report, there was no fixed point available for the purpose, this Court finds, there is no following of proper procedure by the Survey Knowing Commissioner. The survey in such situation should have been undertaken following the observations made in the above direction. Petitioner’s objection gets the full support of the decision referred to therein above. Under the circumstances and as this Court finds, the report is defective, interfering with the impugned order, this Court sets aside the same. As a fresh report is required, this Court directs the trial Court to depute a Survey Knowing Commissioner for re-measurement and identification of the issue involved asking it to undertake the process following the direction of this Court, vide 1989 (II) OLR 161. Petitioner and the opposite party are directed to cooperate the Survey Knowing Commissioner. The entire exercise will be concluded within a period of one month from the date of acceptance of both the parties in the Court below. The Civil Misc. Petition stands disposed of with the above direction. Issue urgent certified copy. CMP disposed of.