The High Court of Orissa dismissed a writ petition challenging the civil court's rejection of an application for a local commission survey. The court held that the dispute did not pertain to land identification or measurement, rendering the commission unnecessary.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF ORISSA: CUTTACK
C.M.P.No.872 of 2016
In the matter of an application under Article 227 of the Constitution of India.
Ananga Udaya Meher and another …. Petitioners Versus Arun Kumar Agrawal …. Opposite party For Petitioners -- Mr.P.K.Nayak Advocate For Opposite party -- Mr.S.Satpathy, Advocate
J U D G M E N T
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of Hearing : 01.11.2016 & Date of Judgment:09.11.2016
Dr.A.K.Rath, J. This petition challenges the order dated 25.4.2016 passed by the learned Civil Judge (Senior Division), Kantabanji in C.S. No. 103/100 of 2012-13, whereby and whereunder, the learned trial court rejected the application of the defendants under Order 26 Rule 9 C.P.C. for deputation of a Commission for local inspection.
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recorded. While the matter stood thus, Ramachandra Sahu alienated the said land to one Lingaraj Mishra on 25.12.1967. Since the dispute arose, Lingaraj Mishra instituted T.S.No.26 of 1983 in the court of the learned Munsif, Titilagarh for declaration of title and confirmation of possession. The suit was decreed. Thereafter Ramachandra Sahu filed T.S.No.111/10 of 86-91 assailing the judgment and decree on the ground of fraud. The suit was withdrawn. After death of Lingaraj Mishra, his legal heirs became owner in possession of the land. On 4.5.2011, the legal heirs of Lingaraj Mishra alienated the land in favour of the plaintiff by means of a Registered Sale Deed. Taking advantage of absence of the plaintiff, the defendants removed fence of the suit land and started construction. The plaintiff protested the same, but the defendants did not pay any heed. The defendants assured the plaintiff to vacate the suit land after demarcation. On 9.9.2012, the Amin demarcated the land in presence of both the parties, but the defendants refused to sign on the map prepared by the Amin.
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for deputation of Commission for local inspection contending inter alia that a plea has been taken in the written statement that since the year 1958 late Chakradhar Meher raised boundary wall and planted trees inside the boundary wall. D.W.2 and other witnesses have deposed that boundary wall has been constructed in the year 1988. To ascertain the age of boundary wall, age of trees and demarcate the house, appointment of Commissioner is imperative. The learned trial court rejected the application.
“ 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 :
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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.”
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learned trial court is quite justified in rejecting the application. Accordingly, the petition is dismissed. No costs.
…………..……………..
Dr.A.K.Rath, J.
Orissa High Court, Cuttack The 9th November, 2016/CRB.
3 issues framed by the court
Whether the appointment of a Commission under Order 26 Rule 9 CPC is necessary to ascertain the age of a boundary wall and trees in a suit for declaration of title.
Whether the dispute involves the identification, location or measurement of land requiring a local investigation.
Whether the contention of the defendants regarding age of trees/wall falls within the scope of a Survey Knowing Commission under the Order 26 Rule 9 CPC.
Colour shows how this judgement treated each authority
Mahendranath Parida Vrs. Purnananda PardiaReferred¶23
Mahendranath Parida Vrs. Purnananda Pardia and others, AIR 1988 ORISSA 248 · Who else cites this
1 provisions across 1 enactments
Ananga Udaya Meher and another
Arun Kumar Agrawal
A.K. Rath
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
