This court dismissed the petitioner's Civil Miscellaneous Petition seeking appointment of a survey knowing commissioner under Order XXVI Rule 9 C.P.C. The court held that since the purchased land is not the subject matter of the dispute in the pending civil suit and appeal, such appointment would be an abuse of process.
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CMP NO. 598 OF 2020
06 10.12.2020 Due to outbreak of COVID-19, this matter is taken up through Video Conferencing.
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and is not binding on him. The suit was allowed vide judgment dated 26.09.2016 declaring the right, title and interest in favour of the plaintiff-opp. party no.1 and confirming his possession over the suit land. The registered sale deed no. 3808 dated 16.11.2009 executed in favour of defendant no.1-opp. party no.3 was also declared to be void and as such, mutation R.O.R. issued thereupon was not binding on the plaintiff-opp. party no.1 and the defendants were restrained permanently from entering upon the suit land or creating any sort of disturbances in the peaceful possession of the plaintiffopp. party no.1. Assailing the same, the defendant no.1opp. party no.3 filed RFA NO. 56 of 2016, which is pending in the court of learned 2nd Addl. District Judge, Khurda.
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setting aside the order of rejection dated 22.09.2017 passed in Demarcation Case No. 221 of 2007 and the matter was remitted back to the Tahasildar, Khurda for demarcation of the suit land within a period of forty-five days therefrom. Pursuant to the direction of this Court, the demarcation of the suit land could not be done due to obstruction of plaintiff-opp. party no.1 and his family members. The plaintiff-opp. party no.1 thereafter filed a review petition, i.e. RVWPET No. 273 of 2017, before this Court to review the order dated 18.10.2017 passed in W.P.(C) No. 21866 of 2017, which was allowed on 25.04.2018 recalling the order dated 18.10.2017. Subsequently, said writ petition, i.e. W.P.(C) No. 21866 of 2017, was heard afresh and disposed of on 24.06.2019 with a direction that since RFA No. 56 of 2016 is subjudice before learned 1st Addl. District Judge, Khurda, the petitioner would be at liberty to file an appropriate application for appointment of a survey knowing commissioner in the said appeal. Accordingly, the petitioner, who was not a party to the said appeal, filed an application for intervention as well as an application under Order XXVI Rule 9 C.P.C.. Learned 2nd Addl. District Judge, Khurda though allowed the petition for intervention, but without considering the petition under Order XXVI Rule 9 C.P.C. from its proper prospective rejected the same for which the petitioner has filed this CMP.
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It is his submission that unless a survey knowing commissioner is appointed and the purchased land by the petitioner is demarcated, she will be remediless. She being the rightful purchaser is deprived of enjoying her property due to the inter se dispute between the plaintiffopp. party no.1 and defendant no.1-opp. party no.3. Plot No. 326 under Khata No. 238 is a big plot having an area of Ac.5.200 decimals and the petitioner has purchased only Ac.0.049 decimals out of the same. The land she has purchased falls within the area of Ac.0.099 decimals involved in the civil suit. As such, she is a necessary party to the appeal and she has been deprived of enjoying her property due to lack of identification of the suit land. Thus, deputation of a survey knowing commissioner is imperative for demarcation of the land. 6. Mr. Ghosh, learned counsel for the plaintiff-opp. party no.1 submits that the CMP is not maintainable, as the petitioner is a lis pendense purchaser. The vendor of the petitioner is none else than her husband, who by practising fraud has sold the land to the petitioner. It is his submission that her right is well protected by the appellant in RFA No. 56 of 2016 and her husband can identify the land he has sold. As such, no petition for deputation of survey knowing commission is necessary. Supporting the impugned order, Mr. Ghosh, learned counsel prays for dismissal of CMP.
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materials placed before this Court including the written note of arguments along with certain documents, it appears that learned 2nd Addl. District Judge, Khurda has discussed the matter in a thread bare and came to a conclusion that when her husband (defendant no.1-opp. party no.3) from whom she acquired title has not raised any grievance with regard to identification of the property during pendency of the suit, the petitioner probably cannot raise the same in the appeal. The purchased land of the petitioner is not the subject matter of dispute. The report of the commissioner will not be helpful in adjudicating the controversy between the parties.
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from defendant no.1-opp. party no.3. But after the civil suit, i.e. C.S. No. 03 of 2011 was decreed in favour of the plaintiff-opp. party no.1, the petitioner for the reason best known to her withdrew the said suit. Be that as it may, the grievance of the petitioner in her petition filed under Order XXVI Rule 9 C.P.C. is that the land purchased by her from the defendant no.1-opp. party no. 3 should be demarcated by issuing a direction for appointment of a survey knowing commissioner. The matter with regard to purchase of the suit land by the petitioner from the defendant no.1-opp. party no.3 or its identification, is not the subject matter of dispute in C.S. No. 3 of 2011. Thus, the scope of the suit cannot be enlarged by an intervenor at the appellate stage. As has been rightly observed by learned 2nd Addl. District Judge, Khurda, identification of the land purchased by the present petitioner would in no way be helpful for adjudication of RFA No. 56 of 2016 pending before him. The purpose of appointment/deputation of a survey knowing commissioner is to ‘elucidate a matter in dispute’. Admittedly, the land purchased by the petitioner is not a matter in dispute or issue either in C.S. No. 3 of 2011 or in RFA No. 56 of 2016. Thus, Order XXVI Rule 9 C.P.C. has no application to the case at hand. 10. It further appears that the petitioner had already withdrew the suit, i.e. C.S. No. 116 of 2014, filed for declaration of her right, title and interest over a land she has purchased by registered sale deed dated 24.8.2011
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executed by the defendant no.1-opp. party no.3 in the capacity of Power of Attorney Holder of Nihamani Singh and Pratap Kumar Singh. Thus, the claim of the petitioner cannot be adjudicated in a suit, in which the dispute raised by her is not an issue. As such, deputation of a survey knowing commissioner will amount to abuse of process of court.
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K.R. Mohapatra, J.
bks
2 issues framed by the court
Whether an intervener who purchased land from a vendor that is not a dispute in the main suit is entitled to request the appointment of a survey knowing commissioner under Order XXVI Rule 9 C.P.C. in
Whether deputation of a survey knowing commissioner to demarcate land that is not the subject matter of the dispute amounts to abuse of process of court.
1 provisions across 1 enactments
Petitioner
Plaintiff-opp. party no.1
K.R. Mohapatra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
