PURENDRA MOHANTA Vs. DAMBARUDHAR MOHANTA

JUDGEMENT

(1.) Heard.

(2.) In this writ petition the petitioner challenges the order dated 20.02.2010 passed by learned Civil Judge (Senior Division), Karanjia, in Civil Suit No.17 of 2008 refusing the prayer of the petitioner to depute a Amin Commissioner for measurement of the suit land. It is not disputed at this stage that the dispute between the plaintiff and defendant relates to the boundary. The plaintiff claims that the defendant has encroached a portion of his land and constructed a pucca house there on, which is denied by the defendant. The plaintiff in his petition prays to depute a survey knowing commissioner for measurement and inspection of the land in question and has averred that prior to filing of the suit he had got the lands verified/measured by a private Amin, but in the mean time he has been gained over by the defendant and is unwilling to come to the Court. On such facts, the learned Court below rejected the prayer of the plaintiff-petitioner saying that as the plaintiff has already measured the lands through a private Amin, there is no need to depute a salaried Amin to demarcate/inspect/measure the lands in question.

(3.) In course of hearing, learned counsel for the petitioner relied upon the reported decision in the case of Mahahendranath Parida v. Purnananda Parida and others, (1987) 64 C.L.T 722. The Court held as follows : "No doubt, the provision confers a discretion on the Court. But the discretion, as it is well known, has to be exercised in a judicious and sound manner but not whimsically and capriciously. What is necessary to note in the provision is the expression 'deems a local investigation to requisite or proper for the purpose of elucidating any matter in dispute. Therefore, where the Court considers a local investigation to be requisite and proper, ordinarily it should not decline to exercise jurisdiction. If any decline jurisdiction if the motion is made at a belated stage, or if the motion is mala fide or in circumstances justifying refusal. A party has a choice and a right to examine a survey-knowing person after getting the identification or measurement privately done by him. For examining such witness it does not seek any privilege or indulgence. Where the controversy between the parties is the area of the land or identification or location of an object or the land, local investigation is necessary, essential, requisite or proper. It will not be a sound exercise of discretion without anything more to decline to appoint a commissioner. Very often decision of a case turns on the identification or determination of the area and evidence in relation thereto from its peculiar nature can only be had on the spot. In such cases local investigation and measure are essential. Evidence in respect there of can be laid by engaging a person qualified to conduct the investigation and measurement privately. But there are some difficulties. While doing the survey, the person has to take measurements from various points. In course of much investigation it may be necessary for him to enter upon land and premises of the other party and he may be resisted by the latter, whereas neither of the parties can resist the commissioner appointed by the Court from carrying out the writ. So it is held the where local investigation is considered necessary essential, the Court should not ordinarily refuse to appoint a commissioner for the purpose of elucidating any matter in dispute between the parties."