RAM PRASAD MISHRA Vs. DINABANDHU PATRI

JUDGEMENT

(1.) The order of the learned Single Judge dated 30.08.2011 in allowing the writ petition quashing the order dated 18.09.2010 passed by the Second Civil Judge (Senior Division), Bhubaneswar in C.S. No.184/153 of 2010/2009 allowing the plaintiff-appellant for deputing Survey knowing Commissioner for measurement and demarcation of suit 'A' schedule lands is filed by the appellant-plaintiff urging various grounds.

(2.) It is contended by the appellant that the learned Single Judge failed to appreciate that the suit is for demarcation of the property between the two allottees who have failed to settle the same in spite of demarcation by the Tahasil Amin and ought to have held that the suit filed by the appellant of the nature of the demarcation of the lands of both parties is necessary through the process of Court. Hence, the trial Judge is right in appointing the Survey knowing Commissioner and quashing the said order, learned Single Judge by exercising judicial review power is bad in law; hence the same is liable to be set aside.

(3.) Another ground urged is that the petition filed under Order 26 Rule 9, C.P.C. by the plaintiff-appellant is to be read along with the plaint. The appellant has to seek for demarcation of the suit land. Learned Single Judge completely went in wrong saying that the petition is not clear as to which land is to be demarcated; hence the impugned order is not sustainable in law and the same is liable to be set aside. Learned trial Judge on consideration of the respective pleadings of the parties and in the background of the case pleaded by both parties exercised the discretionary power and directed for appointment of the Civil Court Commissioner for demarcation of the suit 'A' schedule land before commencement of the hearing; interference by the learned Single Judge at that stage in exercise of certiorari power is wholly unwarranted and therefore the same is liable to be quashed.