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2023 DIGILAW 127 (ORI)

Sitaram Jayapuria v. Tarani Singh @ Bag

2023-01-24

K.R.MOHAPATRA

body2023
JUDGMENT K.R. Mohapatra, J. - This matter is taken up through Hybrid mode. 2. Order dated 29th November, 2022 (Annexure-7) passed by learned Civil Judge (Junior Division), Jharsuguda in Civil Suit No.43 of 2020 is under challenge in this CMP, whereby an application filed under Order XXVI Rule 9 CPC filed by Defendant No.1/Petitioner has been rejected. 3. It is submitted that the suit has been filed for declaration of right, title and interest and that the sale deed No.520 dated 15th April, 2000 is void and to declare the Schedule 'A' land to be joint family property of Defendant No.2. During course of recording of evidence on behalf of Defendants, an application under Order XXVI Rule 9 CPC was filed by Defendant No.1 to depute a Survey knowing Commissioner to submit report as to whether Defendant No.1 is in possession over the suit land and that Defendant No.1 is using the same as the only access to his house. Learned trial Court holding that the identity of the land is not in dispute, rejected the petition. Hence, this CMP has been filed. 4. Mr. Das, learned counsel for the Petitioner submits the Defendant No.1 is in possession over the Schedule 'B' land, which is being used as the only access to the house of Defendant No.1. In order to elucidate such dispute, a Survey knowing Commissioner should have been appointed to submit report to that effect. Learned trial Court, without considering the same, rejected the petition under Order XXVI rule 9 CPC. Hence, he prays for setting aside the impugned order under Annexure-7 and direct the learned trial Court to depute a Survey knowing Commission to submit a report with regard to possession and use of the 'B' Schedule land. 5. Upon hearing learned counsel for the Petitioner and on perusal of record, it appears that the suit is posted for further evidence on behalf of the Defendants. Law is well-settled that the party has to prove its case by leading cogent evidence. If the Defendant No.1 is possessing the land which is being used as the only access to his house, the onus is on him to prove the same. A Survey knowing Commission cannot be appointed to procure the evidence on behalf of a party to the suit. If the Defendant No.1 is possessing the land which is being used as the only access to his house, the onus is on him to prove the same. A Survey knowing Commission cannot be appointed to procure the evidence on behalf of a party to the suit. Since the Defendant No.1 has not yet made any endeavour to prove his case by leading evidence, a petition under Order XXVI Rule 9 CPC is not maintainable. Further, there is no dispute with regard to identity of the land. The Survey knowing Commissioner cannot be appointed to seek a report to establish the case of a party. In that view of the matter, this Court is of the considered opinion that learned trial Court has committed no error in dismissing the application under Order XXVI Rule 9 CPC. 6. Thus, the CMP being devoid of any merit stands dismissed.