Orissa High Court
Govinda Nahak And Others vs Juria Gouda And Others on 8 May, 2017
Equivalent citations: 2017 AIR CC 2335 (ORI), (2017) 175 ALLINDCAS 611 (ORI) (2017) 2 ORISSA LR 581, (2017) 2 ORISSA LR 581
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
C.M.P.No.81 of 2015
In the matter of an application under Article 227 of the Constitution of
India.
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Govinda Nahak and others .... Petitioners
Versus
Juria Gouda and others .... Opposite parties
For Petitioners -- Ms.Deepali Mahapatra
Advocate
For Opposite parties -- Mr.R.L.Pradhan,
Advocate
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of Hearing:26.04.2017 & Date of Judgment:08.05.2017
Dr.A.K.Rath, J.This petition challenges the order dated 16.12.2014 passed by the learned Civil Judge (Senior Division), Aska. By the said order, the learned trial court rejected application of the defendants under Order 26 Rule 9 C.P.C. to appoint S.D.O., Minor Irrigation, Hinjilicut as Commissioner for local investigation and to submit report about the water channel.
2. The opposite parties as plaintiffs instituted the suit for mandatory injunction directing the petitioners-defendants to fill the channel over the suit land and permanent injunction. The case of the plaintiffs is that the suit land appertaining to Hal Khata Nos.552 and 91, Hal Plot Nos.1382, 1376 and 1334 measuring an area Ac.0.210 dec. of 2 mouza-Sahaspur under Sanakhemundi Tahasil belong to them. The Government of Orissa constructed the Rushikulya canal, which passes through village Sahaspur. The said canal exists to the west of the suit plot. While the matter stood thus, some of the villagers of Sahaspur including the defendants-petitioners, who belong to village Tulasipadar, dug a channel in the year 1987 for the purpose of irrigation and damaged crops. The plaintiffs filed Misc.Case No.5 of 1987 before the Tahasildar- cum-Irrigation Officer, Digapahandi praying for a direction to the defendants to fill up the channel. The same was allowed on 6.5.1989. The defendants had been restrained not to interfere with the possession of the plaintiffs. Against the said order, the defendants preferred an appeal. The same was dismissed. Thereafter the defendants filed revision before the Collector, Ganjam, which met the same fate. In the consolidation operation, the suit plot was recorded in the name of the plaintiffs, but the kissam of the land has been described as 'Nala' and 'Pani Nala'. When the Collector, Ganjam issued a notification to acquire the land under the Land Acquisition Proceeding, the plaintiffs filed T.S.No.4 of 1998 before the learned Civil Judge (Junior Division), Aska challenging the said notification. The suit was decreed.
3. Pursuant to issuance of summons, the defendants-petitioners entered appearance and filed written statement denying the assertions made in the plaint. While the matter stood thus, the defendants filed an application under Order 26 Rule 9 C.P.C. to appoint S.D.O., Minor Irrigation, Hinjilicut as Commissioner to make an investigation as to whether the water channel exists or not ; whether the land owners are getting irrigation facilities from the same, flow of water to the lands of the defendants and other land owners of four villages, the height of the land of the plaintiffs from the water source of Rushikulya canal and the number of tenants getting facilities. The plaintiffs filed objection stating therein 3 that since the S.D.O., Minor Irrigation Project of Hinjilicut is a Government official and the plaintiffs earlier filed a suit against the Government before the learned Civil Judge (Junior Division), Aska and the same being decreed in their favour, against which the Government did not choose to prefer an appeal, the said authority cannot be appointed as Commissioner in the suit. It is further stated that the Court should not appoint any Commissioner to collect evidence. The defendants have filed the application to protract litigation. The learned trial court came to hold that determination of age of the suit channel, its length, width and depth, whether it is maintained by the Irrigation Department, the beneficiaries, the height of plaintiffs' land in comparison to the suit channel and the impact if the suit channel is closed can be proved by adducing oral as well as documentary evidence. The defendants cannot be allowed to collect evidence by the process of the Court. If an expert Commissioner will be appointed for local investigation, the same would amount to collection of evidence.
4. Order 26 Rule 9 C.P.C., which is hub of the issue, is quoted hereunder:
"Commissions to make local investigations-- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court :
Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."
5. In Mahendranath Parida Vrs. Purnananda Pardia 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, 4 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.
6. The dispute pertains to a water channel. The suit has been filed for mandatory injunction directing the defendants to fill up the channel and for permanent injunction. The pleading reveals that the Government of Orissa have constructed the Rushikulya canal, which passes through the village Sahaspur. The plaintiffs assert that the defendants, who are the villagers, dug the water channel by damaging their crops. In the consolidation operation, the suit plots have been recorded in the name of the plaintiffs. The kissam of the land has been described as 'Nala' and 'Pani Nala'. When the Collector, Ganjam issued a notification to acquire the land under the Land Acquisition Proceeding, the plaintiffs filed T.S.No.4 of 1998 in the court of the learned Civil Judge (Junior Division), Aska assailing the notification. The suit was decreed. The assertion of the defendants is that the water channel is in existence from the pre-independence era and is managed by the Irrigation Department. Since the dispute pertains to the plaintiffs on one hand and the villager on the other hand over the water channel, the same can be resolved, if the S.D.O., Minor Irrigation, Hinjilicut is appointed as Commissioner to ascertain the existence of channel over the suit plot. The Commissioner shall file a report indicating the existence of channel and whether the same is maintained by the Irrigation Department. The petition is allowed to the extent indicated above.
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Dr.A.K.Rath, J.
Orissa High Court, Cuttack The 8th May, 2017/CRB.