TUSHAR KANTA PANIGRAHI Vs. UDAYANATH SAHU

JUDGEMENT

(1.) HEARD learned counsel for the parties. Perused the impugned order. The defendant in C.S. No. 29 of 2010 pending on the file of the learned Civil Judge (Jr. Division), Jharsuguda has filed this writ petition challenging the order dated 23.3.2011 passed by the Trial Court rejecting the defendants application under Order 26 Rule 9, CPC for deputing a survey knowing Commissioner to demarcate the suit land.

(2.) THE suit of the plaintiff -O.P. is for permanent injunction against the defendant. Admittedly, both the plaintiff and the defendant have purchased land from the common vendor and the lands of both are adjacent. Essentially, the dispute is with regard to identification and demarcation of the disputed land in question over which both the parties claim title by virtue of purchase from the common vendor and the defendant has also filed a counter claim. In the suit the defendant filed a petition for deputation of a survey knowing Commissioner for measuring, demarcating the land in question. The Trial Court has rejected the petition holding that there is much evidence to be adduced which may help in adjudicating the dispute regarding the boundary and therefore, it is not the proper stage to allow the prayer for deputing a Commissioner. For giving such ground the Trial Court evidently took note of the observation of this Court in the case of Sitaram Nayak v. Smt. Usharani Das; 2003 (I) OLR - 370, to the effect that when the dispute is relating to the boundary and evidence can be secured by the petitioner by employing the Tahasil Court Amin, an application under Order 26 Rule 9, CPC is not necessary.

(3.) WHETHER reports of any Tahasil Amin with regard to demarcation of the disputed land have been led into evidence or not is not borne out from the impugned order as the same is not at all taken into consideration by the Trial Court for rejecting the petition. On the other hand, the learned counsel for the petitioner has invited attention of this Court to some averments made in the plaint that the defendant had got the Tahasil Amin for demarcation of the land, but the demarcation could not be completed. Law is well settled, as observed by the Apex Court, in the decision reported in 2009 (II) OLR (SC) - 57 (Haryana Waqf Board v. Shanti Sarup and others) that when the controversy between the parties was regarding identification and demarcation of adjacent lands a Commissioner ought to be appointed for demarcation of the lands. Similar view has also been taken by this Court in the decision reported in 2011 (II) OLR - 678 (Kartik Chandra Nayak v. Bira Kishore Nayak and four others) following the earlier decision of this Court reported in 64 (1987) C.L.T. 722 (Mahendranath Parida v. Purnananda Parida and others) where it has been held that the Court should not ordinarily refuse to appoint a Commissioner if it considers a local investigation to be requisite or proper only on the ground that the party can adduce evidence through a private survey knowing person.