AGANANANDA NAYAK Vs. NARAYAN MOHAPATRA

JUDGEMENT

(1.) REFUSAL to accept prayer of the plaintiff for appointment of a survey knowing Commissioner has brought the plaintiff before this Court.

(2.) THE revision application has been filed in the following back - ground.

(3.) A commission for local investigation pre -supposes the existence on record of independent evidence which requires to be elucidated. It is a matter of discretion of the Court to be used when the Court feels that there can be better appreciation of evidence by appointing a Commissioner. The nature of controversy here shows that a local investigation would facilitate the process of adjudication in the trial Though the plaintiff can bring the materials through his witnesses, more particularly by a private Commissioner, yet that should not deter a Court from directing appointment of a Commissioner if the ends of justice so warrant. This Court under apparently similar circumstances in 68(1988) CLT 630 : Sanku Ranga Rao v. Devi Prasad Sahu and Anr., directed appointment of a Commissioner. As observed by this Court in 64(1987) CLT 298 : The Municipal Council, Cuttack v. Smt. Rambhabati Devi, where the result of the case would substantially depend on the identification of the disputed property, deputation of a survey knowing Commissioner becomes desirable. The contention raised that if a party has a right and can adduce evidence of a survey knowing person engaged by him privately, it is open to the Court to decline to appoint a Commissioner for local investigation, did not find favour with this Court in 64(1987) CLT 722 : Mahendranath Parida v. Purnananda Parida and Ors. There are certain difficulties which arise when survey is undertaken because measurements have to be taken from various points, and for the purpose it may be required to enter upon the land and premises of the other party, which may be resisted and therefore, there only not be effective measurement to be of any assistance to the party taking help of a private person. On the other hand, a Commissioner appointed by the Court would not be confronted with such a situation. judged in this background, I am of the view that refusal of the learned Munsil was not justified. The impugned order is accordingly vacated. The trial Court is directed to take steps to appoint a suitable Commissioner. It shall be open to the learned Munsif to give such direction as are warranted in the circumstances of the case for proper adjudication of the dispute. The Civil Revision is accordingly disposed of. No costs.