SADHU CHARAN NAYAK Vs. SANATAN TRIPATHY

JUDGEMENT

(1.) THIS revision application is directed against the order passed by the learned District Judge, Dhenkanal in little Appeal No. 45 of 1996 wherein the learned Appellate court has rejected the application filed by the petitioner under Order 26, Rule 9 of the Code of Civil Procedure (in short 'the Code') praying to depute a survey knowing commissioner for local investigation to ascertain the actual possession and the corresponding link between the suit land and the purchased land of the defendant - respondent.

(2.) THE case of the petitioner is that the entire dispute centres round the identity of the plots and at the time of trial of the suit, the learned trial court without making any endeavor to have an identity of the plots conspicuous, dismissed the suit. It was submitted by the learned counsel for the petitioner that plot Nos. 214 and 216 situate to the north and south respectively of plot No. 215 and those plots formed a compact patch. The opposite party purchased a portion of the compact patch measuring Ac 0.08 from the eastern side of the patch as the plaintiff -petitioner is in possession of the western side. It was further contended that the opposite party after purchase possessed his land and there was a fence between the land of the petitioner and the land, purchased by the opposite party. But the opposite party makes a claim over the suit plot on the basis of illegal entry in the record of rights of the current settlement. It was further stated that for better appreciation of the facts and just decision of the case, it is expedient to ascertain as to which plot is under the possession of the defendant/opposite party and to rely the Sabik and Hal maps in order to find out the entitlement vis -a -vis the possession of the opposite party and the necessity for appointment of a survey knowing Commissioner. Learned counsel for the opposite party states that this bas been done at a belated stage. It is argued that since there was no application for appointment of survey knowing commissioner during trial, no further investigation is necessary in view of the fact that the trial court has given the finding on the basis of the evidence adduced before him. Learned appellate court after hearing the parties and looking into the evidence and the judgment of the trial court opined that there is absolutely nothing to indicate the special nature of disputed property justifying local investigation for its identification and in view of the finding of the trial court which is very clear on the point it would not only be a fruitless exercise but an abuse of the process of the court if a Commissioner is deputed for local investigation on the self -same matter on which a competent court has already given a verdict. The further finding of the appellate court is as follows :

(3.) CONSIDERING the facts and circumstances, I find deem and proper for deputing a civil court commissioner for the purpose of elucidating the matter in dispute. Therefore, I have no hesitation to set aside the order of the appellate Court. Accordingly, the impugned order dated 30 -6 -1999 passed by the learned District Judge, Dhenkanal in T. A. No. 45 of 1996 is set aside.