PRAMOD CHANDRA SENAPATI Vs. SANATAN JENA AND ORS.

JUDGEMENT

(1.) PETITIONER filed this Civil Miscellaneous Petition assailing the Order Dated 15.3.2014 passed by the Learned Civil Judge (Senior Division), Baleswar thereby rejecting the application at the instance of the Plaintiff -Petitioner under Order 39, Rule 7 of the Code of Civil Procedure, 1907. The brief fact of the case is that the Petitioner as Plaintiff filed a suit for declaration of right, title & interest over the suit schedule land, correction of Record -of -Right & also for permanent injunction. The Plaintiff's case in the suit is that he is one of the sons out of five sons of his late father. One of the brothers of the Petitioner, namely, Pradip had earlier filed OS. No. 111 of 1972 -1 for partition of their entire ancestral joint family properties impleading their father as one of the Defendant. The present Petitioner was impleaded as Defendant No. 3 in the said suit. The said suit was decreed in terms of compromise on 12.2.1975. The Petitioner therefore, submitted that the entire ancestral property has been partitioned in meets & bounds by allotting Ac.2.11 decimals of land as described in the plaint involved in the suit as 'Ga' schedule land. All the co -sharers have been given 1/4th equal share in 'Ga' schedule land i.e. Ac.2.11 decimals of land in favour of each. The Petitioner alleges that even though he is in possession of his allotted share, but in the final settlement Record -of -Right, the area was wrongly reflected as Ac.1.58 decimals in stead of Ac.2.11 decimals of land. The co -sharers raised dispute over the balance portion of land taking plea of recording in the Record -of -Right. It is in this view of the matter, the Petitioner was constrained to file the suit involved in this Writ Petition. In the suit, the Petitioner had also filed an application for injunction with a prayer to restrain the Defendants thereby not to disturb with the possession of the Plaintiff. The Trial Court after hearing the parties & going through the records granted an order of status quo. It is further alleged that while the matter stood thus, during current cyclone, namely, "Phylin" 30 numbers of Saguan trees & some other trees got uprooted involving the suit property. The Petitioner filed an application under Order 39, Rule 7 of the Code of Civil Procedure in the above pending suit with a prayer to appoint a Commissioner for investigation & preservation of all trees.

(2.) UPON notice, in the application under Order 39, Rule 7 of the Code of Civil Procedure, Defendant Nos. 1 to 3 i.e. the present Opp. Parties filed a common objection making averment therein that since the suit has been posted for hearing, there is no necessity to appoint a Commissioner alleging further that the Petitioner has already taken away the trees & the Petitioner has filed this application with an intention to delay the proceeding. The Defendants -Opp. Parties further submitted that there is no Teak trees on the described plot. Such application is not maintainable having been filed after the Plaintiff already filed his deposition under Order 18, Rule 4 of the Code of Civil Procedure, which includes reference of the documents as exhibits. The petition of the Petitioner was objected also on the ground that the hearing of the suit has already commenced, there is no necessity for appointment of Commissioner at this stage. Further, when there is dispute regarding boundary & dispute concerning right, title & interest, this is no scope to depute a Commissioner, which will ultimately disturb the trial in the proceeding. On the above premises, the Defendants -Opp. Parties submitted for rejection of the application under Order 39, Rule 7 of the Code of Civil Procedure.

(3.) BEFORE proceeding to deal with the merit of the case, it is necessary to refer to the provision contained in Order 39, Rule 7 of the Code of Civil Procedure.