RAJENDRA PRASAD PRADHAN Vs. N. KISHORE PATNAIK

JUDGEMENT

(1.) Mr. Mishra, learned senior advocate appears on behalf of petitioners. He submits, his clients are defendant nos. 1, 2 and 3 in C.S. no.1 of 2018 filed in Court of Civil Judge (Senior Division), Berhampur. He submits, other defendants are government functionaries. Opposite party-plaintiff has filed the suit for declaration of title alleged over the property and his claim of restraint against encroachment by petitioners. His clients filed written statement. Then opposite party filed petition under rule 9 in order XXVI, Code of Civil Procedure and by impugned order dtd. 18/12/2021 Surveyor Knowing Commissioner (SKC) was appointed. Said order is illegal and passed on material irregularity. There be interference.

(2.) Rule 9 in order XXVI gives discretion to the Court to require local investigation, inter alia, for purpose of elucidating any mater in dispute. It appears from the suit that location of boundary wall constructed by petitioners, is a matter of dispute. However, Mr. Mishra wants to establish that no order for commission can be made on a suit for declaration, without ascertaining title of plaintiff.

(3.) Issue notice along with copy of this order on opposite party no.1. Petitioner will put in requisites.