Dismissed

Suraj Nayak v. Pabitra Senapati

Orissa HC22 Dec 2020CMP/334/2020

Case brief

AI extract

What is this about?

A civil revision petition was filed challenging an order allowing deputation of a survey knowing commissioner under Order XXVI Rule 9 CPC during an ongoing trial. The court examined the propriety of the stage for such issuance, citing precedents, and dismissed the revision holding the trial court's exercise of discretion was lawful and not arbitrary.

What did the court decide?

The civil revision petition was dismissed; the impugned order allowing the survey knowing commissioner was upheld.

Suraj Nayak Vs Pabitra Senapati — Property and Title | Orissa HC (2020)

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CMP NO.334 OF 2020

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22.12.2020 Due to outbreak of COVID-19, this matter is taken up through Video Conferencing.

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Heard Mr. P.V. Balakrishna, learned counsel for the petitioners and Mr. S.K. Dash, learned counsel for the opp. parties 1 to 5. 3. The petitioners in this CMP seek to assail the order dated 19.12.2019 (Annexure-5) passed by learned Civil Judge (Senior Division), Parlakhemundi, Gajapati in C.S. No. 43 of 2018, whereby learned Civil Judge directed for deputation of a survey knowing commissioner to conduct the field enquiry by making a spot visit and to answer the certain questions mentioned in the impugned order itself.

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Mr. Balakrishna, learned counsel for the petitioners submits that C.S. No. 43 of 2018 has been filed by the plaintiffs-opp. parties for declaration of right, title, interest and confirmation of possession over the suit land as well as other consequential reliefs. The petitioners and opposite parties are defendants and plaintiffs before the trial court respectively. The defendants have already appeared and filed their written statement in the suit. The trial of the suit has already commenced and the plaintiffs after examining P.W.3 filed a petition under Order XXVI Rule 9 C.P.C. for deputing a survey knowing commissioner for demarcation of the suit land. In the said petition, it is contended that since the matter

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involves a boundary dispute and the plaintiffs are not in a position to demarcate the suit land, in spite of best efforts, the survey knowing commissioner should be deputed for demarcation of the suit land. The defendants have filed their objection to the said I.A. contending that survey knowing commissioner can only be appointed either at an early stage of the suit, when the trial has not commenced or at the stage when the evidence is closed. Such a petition cannot be entertained in the midst of the trial. They further contended that the plaintiffs in order to procure evidence through court and patch up the lacunae in the plaint have filed the petition, which needs no consideration. In that view of the matter, they prayed for dismissal of the petition for deputation of a survey knowing commissioner. Taking into consideration the contentions of learned counsel for the parties and the case law cited, learned trial court passed the impugned order allowing the petition for deputation of a survey knowing commissioner.

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Further, Mr. Balakrishna, learned counsel for the petitioners reiterating the objection raised by the defendants before the trial court submits that the stage at which the petition under Order XXVI Rule 9 C.P.C. was considered cannot be said to be appropriate. Since the trial has already commenced, the plaintiffs ought to have waited till closure of the evidence to file such a petition depending upon its

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requirement. It is his submission that after closure of the evidence, the court will be in a position to find out as to whether the evidence available on record are sufficient to reach at a just conclusion and pass an effective decree. As such, the petition under Order XXVI Rule 9 C.P.C. is premature. In support of his contention, he relied upon the decision of this Court in the case of Ramakanta Patnaik & others –vSuresh Chandra Sahoo and another , 122 CLT (2016) 1087, wherein it has been held at paragraph-7 as follows:

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7. Reading of the aforesaid provision makes it clear that purpose of the Act is to elucidate any matter in dispute. From the observation made hereinabove, this Court nowhere finds any dispute with regard to identification or location of the disputed schedule property in the entire suit. Under the circumstances, this Court feels that there is no scope for an application under Order 26, Rule 9, CPC is applicable to the suit at the present stage. This Court has gone through the citations relied on by the learned counsel appearing for the petitioners and finds none of the citation is helpful to the petitioners due to difference in fact and situation.

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He, therefore, prays for setting aside the impugned order under Annexure-5.

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Mr. Dash, learned counsel for the opp. parties, on the other hand, submits that the petition under Order XXVI Rule 9 C.P.C. filed by the plaintiffs satisfies all the requirements for deputation of a survey knowing commissioner. Since there exists a boundary dispute between the plaintiffs and

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defendants and the matter requires elucidation for effective adjudication of the suit, deputation of a survey knowing commissioner is essential. The plaintiffs are not in a position to measure/demarcate the land due to repeated interventions of the defendants as detailed in the impugned order. The plaintiffs have made several attempts for demarcation of the suit land, but due to interventions and noncooperation of the defendants, they could not do so. On the other hand, they created disturbance in the possession of the plaintiffs over the suit land, for which the suit has been filed. He, therefore, prays for dismissal of the CMP.

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Taking into consideration the submissions of learned counsel for the parties and the case law cited by Mr. Balakrishna, learned counsel for the petitioners, it is profitable to refer the judgment in the case of Santosh Kumar Parida –v- Narayan Chandra Dash and others in CMP No. 317 of 2020, disposed of on 01.07.2020, paragraphs-6 and 7 of which read as follows:

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“ 6. The provision is silent about the stage at which such a commission should be issued. The power conferred under the provision can be exercised at any stage during pendency of the suit. In other words, the Court in its discretion may issue a commission at any stage of the suit, when it thinks necessary to 6 do so for the purpose of elucidating any matter in dispute or for any other purposes prescribed in the Rule itself. There are divergent views with regard to the stage of a suit at which a Commission can be issued. There cannot be any

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straightjacket formula to prescribe any particular stage of the suit at which a Commission, if required, can be issued. It depends upon the facts and circumstances of each case. In the case of Ramakanta Nayak Vs. Bhanja Dalabehera, reported in (2015) Supp.II OLR 418, this Court held that issuance of a commission for local investigation is the discretion of the Court. While considering the prayer for issuance of a Commission, the Court must apply its mind to the facts and circumstances of the case and pass orders. Before issuance of a Commission, the Court must be satisfied that there is prima facie material in favour of the applicant for issuance of such a Commission. Again, in case of Ramakanta Nayak (supra), it is held that when the Legislature in its wisdom has not prescribed the stage of appointment of Survey knowing Commissioner, the power of the Court to appoint the Survey knowing Commissioner cannot be cabined, cribbed or confined. Thus, the power of the Court to issue commission under the provision cannot be abridged or curtailed by prescribing a particular stage of the suit for issuance of a Commission for a particular purpose. 7. With utmost respect to the decision cited by Mr.Mishra, learned Senior Counsel, this Court is of the humble opinion that there are divergent views on the point of issuance of Commission at any particular stage of the suit. As discussed above, there cannot be any particular stage for issuance of a Commission. It depends upon the facts and circumstances of each case. Hon’ble Division Bench has opined in the case of Ramprasad Mishra (supra) that when the dispute is with regard to demarcation of land or there is a boundary dispute, survey knowing commissioner should be appointed at the earliest so that the parties may lead evidence keeping in mind the report submitted by the Commissioner. The opinion of the Hon’ble Division Bench is suggestive taking into consideration the facts and circumstances of the said case and cannot have a universal application. Thus, I am of the humble opinion that the Court before whom the suit is pending is in the best position to determine at what stage of the suit a Commission, if any, is to be issued. The decision taken by the Court before whom the suit is pending, either refusing or

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granting the prayer for issuance of commission, or for that purpose deferring consideration of such prayer, should not be interfered with lightly unless it is arbitrary or there is patent illegality or material illegality in the impugned order.

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In the instant case, it appears that the suit property corresponds to Plot No. 948 under Khata No. 37 to an extent of Ac.0.929 hectares in mouza Mohana in the district of Gajapati, which stands recorded in the name of the father of the plaintiffs, namely, Kabi Senapati. Consequent upon his death, the suit property devolved upon his sons, being the legal heirs, who are plaintiffs in the suit. The R.O.R. under Exts. 1 and 2 have also prepared in their name. The defendant nos. 2 to 5 have purchased a piece of land in Plot No. 754 which is adjacent to the suit land. As the defendants created disturbance in the peaceful possession of the plaintiffs, they filed Demarcation Case No. 1218 of 2015 and the R.I. conducted the demarcation in presence of the plaintiffs and defendant no.5, namely, Rabi Samal, but he (defendant no.5) did not sign the report, which was submitted on 07.06.2015. Consequently, the plaintiffs had approached the Tahasildar, Mohana again for demarcation, who conducted an enquiry on 07.04.2017 after issuance of notice to both the parties, but the demarcation could not be made due to disturbance created by the defendants. Subsequently, the plaintiffs also approached the Collector, Ganjam

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and on his direction, another Demarcation Case No. 7 of 2018 was initiated on the file of Tahasildar, Mohana, but no progress was made in the said demarcation case for which the suit was filed. Thus, it shows that the plaintiffs have made their best effort for demarcation of the suit land, but failed. Since it is a boundary dispute between the parties, the demarcation of the land is necessary to elucidate the matter in dispute. Further, on perusal of the impugned order, it appears that learned trial court has framed three questions to be answered by the survey knowing commissioner for demarcation of the suit land. In that view of the matter, I find that learned trial court has exercised its discretion lawfully, which needs no interference. Accordingly, the CMP being devoid of any merit stands dismissed.

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However, the report, if any, submitted by the survey knowing commissioner shall be subject to the objection to be raised by the defendants, if they so raise.

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Authenticated copy of this order downloaded from the website of this Court shall be treated at par with certified copy in the manner prescribed in this Court’s Notice No.4587 dated 25.03.2020.

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K.R. Mohapatra, J.

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bks

Suraj Nayak v. Pabitra Senapati

Case brief

What is this about?

What did the court decide?

Suraj Nayak v. Pabitra Senapati

Case brief

What is this about?

What did the court decide?

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