KANGALI CH SAHU Vs. DURYODHAN SAHU

JUDGEMENT

(1.) PLAINTIFFS are the appellants against a confirming decision. The suit was for declaration of title, confirmation of possession and permanent injunction. According to the plaintiff's case, the? disputed land measuring Ac. 0.02 decimals is a part of the plaintiffs' land and had been so recorded in the previous Record -of -Rights. However, during the Hal Settlement, erroneously a reduced area was recorded in the names of the plaintiffs and the disputed portion lying towards western side of the plaintiffs' homestead portion has been amalgamated within the defendants' land.

(2.) THE defendants in their written statement while denying the plaint allegations claimed that the disputed land is a part of their homestead. It was further pleaded that in case it is found on measurement that the disputed land was part of the plaintiffs' land, plaintiffs' right cannot be declared as the defendants had acquired title by adverse possession.

(3.) THERE is no dispute that during pendency of the suit, a Survey - knowing Commissioner had been deputed to find out if the disputed land was part of the plaintiffs' land as per the previous Settlement Record - of -Rights. or as to whether the said land appertained to the defendants' land. Even though a report had been submitted and had been accepted by the trial Court initially, in the judgment, the trial Court refused to place any reliance upon such report on the basis of several defects found in the report. The lower appellate Court also found that the report of the Survey -knowing Commissioner was not acceptable in view of the several errors. In the aforesaid background, the counsel for the appellants has submitted that since the question entirely depended upon the measurement by a Survey -knowing Commissioner, the lower appellate Court should have permitted the plaintiffs to take a Survey -knowing Commissioner. The learned counsel appearing for the respondents submitted that there was no necessity for deputing a Survey -knowing Commissioner in view of other materials on record which had been accepted by the Courts below for negativing the case of the plaintiffs.