Orissa High Court
Bhabesh Kumar Das vs Mohan Das Agrawal on 26 August, 2015
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.6509 of 2006
In the matter of an application under Article 227 of the Constitution of
India.
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Bhabesh Kumar Das .... Petitioner
Versus
Mohan Das Agrawal .... Opposite party
For Petitioner -- Miss.Biswarupa Pati, Adv.
for Mr.N.C.Pati, Advocate
For Opp. Party -- Mr.B.Rout,
Advocate
PRESENT:
THE HON'BLE DR. JUSTICE A.K.RATH
Date of Hearing: 17.8.2015 : Date of Judgment: 26.08.2015
DR. A.K.RATH, J.In this petition under Article 227 of the Constitution of India, the petitioner has assailed the order dated 20.4.2006 passed by the learned Civil Judge (Jr.Division), Bhadrak in T. Suit No.77 of 2000-I, whereby and whereunder, the application filed by the opposite party under Order 26, Rule 9 C.P.C. to depute a Survey Knowing Commissioner was allowed.
2. The opposite party as plaintiff filed a suit for permanent injunction in the court of the learned Civil Judge (Jr. Division), Bhadrak, which is registered as T. Suit No.77 of 2000-I. The case of the 2 plaintiff is that father of the defendant sold the disputed land on 10.2.77 by means of a registered sale deed to the plaintiff and delivered possession. The kissam of the land is homestead, but the same had been wrongly recorded as sarada. Since the plaintiff was regularly absent from the State for his business, the suit property could not be recorded in a separate holding in his name. Taking advantage of the same, the defendant threatened to demolish the boundary wall put by the plaintiff.
3. Pursuant to issuance of summons, the defendant filed written statement denying assertion made in the plaint. The case of the defendant-petitioner is that in an amicable settlement, the suit property fell in the share of his father and out of the total A0.76 decimals of land, he sold A0.63 to different persons including the suit land. In the major settlement, R.O.R. the lands were recorded in the name of the respective purchasers and the rest was recorded in the name of his father. It is further stated that out of C.S. Plot No.913, by a registered sale deed dated 10.2.1977, his father sold an area of A0.06 decimals in favour of Ram Das Agrawal, the brother of the plaintiff. The rest area was recorded in the name of the brother of the plaintiff under M.S.Khata No.650, M.S.Plot No.988. The area has been enhanced to A0.11 decimals instead of A0.10 decimals.
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4. During pendency of the suit, the plaintiff filed an application under Order 26 Rule 9 of C.P.C. to depute a Survey Knowing Commissioner. The defendant filed objection to the said petition. By order dated 20.4.2006, the learned trial court allowed the application.
5. Heard Miss.Pati, learned counsel for the petitioner and Mr.Rout, learned counsel for the opposite party.
6. Learned counsel for the petitioner submitted that the sole dispute between the parties revolves around the fact that whether the disputed plot appertains to defendant M.S. Plot or not and measurement of entire C.S. Plot is not at all required in absence of other purchasers. She further submitted that a Survey Knowing Commissioner should not be deputed to collect evidence. According to the learned counsel for the petitioner, a Survey Knowing Commissioner can be appointed after closure of evidence, when the court finds it difficult to pass an effective decree.
7. Per contra, Mr.Rout, learned counsel for the opposite party supported the order.
8. The submission of the learned counsel for the petitioner that a Survey Knowing Commissioner can be appointed after recording of evidence is difficult to fathom.
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9. In the case of Prasanta Kumar Jena Vrs. Choudhury Purna Ch.Das Adhikari, 99 (2005) CLT 720, the learned Single Judge of this Court held that an application under Order 26 Rule 9 C.P.C. can be considered only after closure of the evidence when the court finds difficult to pass an effective decree on the existing evidence. Relying on the said decision, learned Single Judge of this Court set aside the order of appointment of Survey Knowing Commissioner for measurement and demarcation of the land passed by the learned trial court. The same was challenged before this Court in the case of Ram Prasad Mishra Vrs. Dinabandhu Patri and another. The Bench speaking through Mr.V.Gopala Gowda, C.J.(as he then was) held that the learned Single Judge has interfered with the order passed by the learned trial court in appointing the Survey Knowing Commissioner ignoring the decision of this Court in the case of Mahendranath Parida Vrs. Purnananda Pardia and others, AIR 1988 ORISSA 248. Thus, the decision in the case of Prasanta Kumar Jena (supra) has been impliedly overruled by the Division Bench of this Court.
10. In Mahendranath Parida (supra), this Court held that when the controversy is as to identification, location or measurement of the land or premise or object, 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.
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11. In Ramakant Naik and others Vrs. Bhanja Dalabehera, 2015 AIR CC 1724 (ORI), this Court held that issuance of a Commission for local investigation is the discretion of the Court. While considering the prayer for appointment of Commission, the Court must apply its mind to the facts and circumstances of the case and pass order. No straight jacket formula can be laid down. Before issuance of Commission, the Court must be satisfied that there is prima facie case in favour of the applicant.
12. On a reading of Order 26 Rule 9 C.P.C., it is manifest that the stage of appointment of Survey Knowing Commissioner has not been prescribed. When the legislature in its wisdom has not prescribed the stage of appointment of Survey Knowing Commission, the power of the Court to appoint the Survey Knowing Commissioner can not be cabined, cribbed or confined.
13. The further ground of challenge is that the dispute between the parties revolves around the fact that whether the disputed plot appertains to defendant M.S. Plot or not and measurement of entire C.S. Plot is not required at all in absence of other purchasers. The same is per se no ground to reject the application for appointment of Survey Knowing Commissioner. As held by this Court in Mahendranath Parida (supra) that when the controversy is as to identification, location or measurement of the land or premise or 6 object, 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.
14. In the ultimate analysis, the petition, sans any merit, deserves dismissal. Accordingly, the same is dismissed. The learned trial court is directed to conclude the hearing of the suit within six months.
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Dr.A.K.Rath, J.
Orissa High Court, Cuttack.
The 26th August, 2015/CRB.