SURENDRANATH PATRO Vs. PRATIMA SAHU

JUDGEMENT

(1.) This matter is taken up through Hybrid mode.

(2.) Order dtd. 26/9/2023 (Annexure-1) passed by learned Senior Civil Judge (Commercial Court), Berhampur, Ganjam in CS No.396 of 2022 is under challenge in this CMP, whereby an application under Order XXVI Rule 9 CPC filed by the Plaintiff/Petitioner for deputation of a Survey knowing Commissioner has been rejected.

(3.) Mr. Sahoo, learned counsel for the Petitioner submits that the suit has been filed by the Plaintiff/Petitioner for declaration of right, title and interest over the suit property and for recovery of possession of the encroached portion of the suit property in favour of the Plaintiff/Petitioner. At the closure of the evidence of both parties, the Plaintiff/Petitioner filed an application under Order XXVI Rule 9 CPC for deputation of a Survey knowing Commissioner to ascertain as to whether the Defendant has encroached upon any portion of the suit land or not. It is his submission that earlier the Defendant had filed a suit for demarcation and a private Amin was deputed at the instance of the Plaintiff /Petitioner. He had submitted a report that the Defendant had encroached upon the suit property. Such document has been exhibited by the Plaintiff/Petitioner as Ext.11 in the suit. In spite of the same, the Defendant has bluntly denied to have encroached any portion of the suit property. In order to ascertain as to whether the Defendant/Opposite Party has encroached upon any portion of the suit property, a Survey knowing Commissioner should be deputed. Learned trial Court, without appreciating the matter in its proper perspective, held that the evidence on record is sufficient for identification of the suit property. Said petition under Order XXVI Rule 9 CPC was thus rejected. Hence, this CMP has been filed.