Sudam Charan Mallik Vs Surendra Barik

Signature Not Verified

Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 09-Sep-2025 17:38:30

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IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.78 of 2025

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(In the matter of an application under Article 227 of the Constitution of India)

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Sudam Charan Mallik

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…. Petitioner

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-versus-

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Surendra Barik and Others … Opposite Parties

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Advocate(s) appeared in this case:-

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For Petitioner : Mr. A.P. Bose, Advocate For Opp. Parties : Mr. K. Panda, Advocate

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CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 8^th September, 2025

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B.P. Routray, J.

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1 . Heard Mr. A.P. Bose, learned counsel for the Petitioner and

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Mr. K. Panda, learned counsel for Opposite Party No.1.

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2. Present CMP is directed against order dated 29^th November,

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2024 of learned Civil Judge (Junior Division), Nilgiri, Balasore passed in CS No.62 of 2018, wherein the prayer of the Plaintiff to appoint survey knowing commissioner under Order 26, Rule 9 C.P.C. has

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CMP No.78 of 2025

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Page 1 of 7

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Signature Not Verified

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Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 09-Sep-2025 17:38:30

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been refused mainly on the ground that the evidence in the suit has not been commenced and the Plaintiff is at liberty to prove his contentions by adducing documentary evidence.

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3. Present Petitioner who is the Plaintiff before the learned trial

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court in C.S. No.62 of 2018 has approached the civil court with following prayers:

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a) Let the decree be passed in favour of the plaintiff to declare his right, title, interest over the suit schedule ‘A’ land.

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b) Let the decree be passed in favor of the plaintiff to recover the suit schedule ‘A’ land from the defendant no.1 through process of court and to restore possession in favour of the plaintiff.

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c) Let the decree be passed in favour of the plaintiff to demarcate the C.S. southern boundary line of C.S. plot no.11.

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d) Let, the decree for permanent injunction be passed in favour of the plaintiff restraining the defendant no.1 to make new construction and to change the present nature and character of the suit schedule ‘A’ land.

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e) Let, the decree be passed in favour of the plaintiff to get cost of litigation from the defendant no.1.

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CMP No.78 of 2025

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Page 2 of 7

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Signature Not Verified

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Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 09-Sep-2025 17:38:30

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f) Let the decree be also passed in favour of the plaintiff to get any other relief of the plaintiff to get any other relief which he is entitled to get as per law of equity.

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4. At the preliminary stage before adducing evidence, the Plaintiff filed a petition dated 5^th October, 2021 praying to appoint the survey knowing commissioner in terms of provisions contained under Order 26 Rule 9 C.P.C. on the ground that since one of his prayer is with regard to demarcation of southern boundary line of the suit land where his plea is that the land measuring Ac.0.03 dec. in CS Plot No.11 have been wrongly mapped in MS Plot No.30 and thus there is overlapping of such extent of plot in respect of the lands of both parties, spot verification at the initial stage would simplify the dispute.

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5. It is true that no stage of appointment of survey knowing commission has been prescribed under Order 26 Rule 9 C.P.C. The provisions contained in said rule gives discretionary power to the court to have the local investigation in the interest of justice whenever it is necessary for the purpose. This court in the case of Bhabesh Kumar Das v. Mohan Das Agrawal, 2015 (II) CLR 603 , have observed that when the Legislature in its wisdom has not prescribed the stage of appointment of survey knowing commission, the power of

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CMP No.78 of 2025

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Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 09-Sep-2025 17:38:30

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court to appoint the survey knowing commission cannot be cabined, cribbed or confined in that respect.

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6. The Plaintiff in the instant case has specifically pleaded that the

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land measuring Ac.0.03 dec. belonging to him in CS Plot No.11 has wrongly been mapped into MS. Plot No.30 and therefore has sought for indication of the same specifically in the relay map in order to determine the question of amalgamation of the land to such extent into Defendant’s plot. Undoubtedly, the prayer of the Plaintiff as aforestated includes the prayer for demarcation of the southern boundary line between the land of the Plaintiff and Defendant. It is no more res integra that the party cannot use the court for collection of evidence in his support by taking recourse to the provisions for appointment of survey knowing commission or by spot verification. At the same time it is also true the Court’s duty is to adjudicate the dispute properly and to take all necessary steps in that regard.

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7. In Ram Prasad Mishra v. Dinabandhu Patri and Another,

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2012 (Supp.-II) OLR 520, a Division Bench of this court have observed as follows:-

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“7. The party against whom, a report might have given may choose an evidence in rebuttal. Therefore,

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CMP No.78 of 2025

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Signature Not Verified

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Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 09-Sep-2025 17:38:30

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further it is in the said case observed that ordinarily in such type of case, local investigation should not have been deferred after closure of the evidence. Placing reliance on the said decision, having regard to the pleading of the parties learned trial Judge is right in allowing appointment of survey knowing commissioner. The same should not have been interfered with by the learned Single Judge applying various decisions referred to supra and the decision in 2006 (II) OLR 43 which decision has no application to the fact situation.”

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8. It is seen from the impugned order in the case at hand that, while deciding the prayer of the plaintiff for appointment of survey knowing commission learned trial court has taken the suit as filed only for the purpose of declaration of right, title, interest by holding that there is no controversy relating to identification and measurement of the suit land. But on the face of the prayer of the petitioner inter alia for demarcation of the southern boundary line of CS Plot No.11 would necessitates local investigation of the spot land because the controversy in question relates to the identification and overlapping of

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the land in question. Therefore the relay map in respect of the suit schedule ‘A’ property with specification of Ac.0.03 dec. claimed to

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CMP No.78 of 2025

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Page 5 of 7

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Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 09-Sep-2025 17:38:30

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have been overlapped into the plot of the Defendant in MS Plot No.30

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would have made the process of adjudication easier.

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9. Further in Ramakanta Naik and Others v. Bhanja Delabehera,

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2015 AIR CC 1724 (ORI) , this Court have held that issuance of a commission for local investigation is the discretion of the court and while considering such prayer for appointment of the commission the court must apply its mind to the facts and circumstances of the case, and no straight jacket formula can be laid down for the purpose. But before issuance of commission the court must be satisfied that there is a prima facie case in favour of the applicant.

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10. In the present case when the dispute is relating to overlapping

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of such extent of land measuring Ac.0.03 dec. into MS Plot No.30 and the Plaintiff has specifically prayed for demarcation of southern boundary line of suit schedule ‘A’ land, the local investigation of the spot land will be required to simplify the purpose of adjudication and for the same it is not necessary that the parties would adduce their evidence at the first instance.

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11. Accordingly the CMP is allowed. The impugned order dated

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29^th November, 2024 under Annexure-1 is set aside. The prayer of the

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CMP No.78 of 2025

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Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 09-Sep-2025 17:38:30

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Plaintiff to appoint the survey knowing commission as per his petition dated 5^th October, 2021 (Annexure-4) is allowed.

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( B.P. Routray)

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Judge

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M.K. Panda/P.A

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CMP No.78 of 2025

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Sudam Charan Mallik v. Surendra Barik

Case brief

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Sudam Charan Mallik v. Surendra Barik

Case brief

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