BHABESH KUMAR DAS Vs. MOHAN DAS AGRAWAL

JUDGEMENT

(1.) In this petition under Article 227 of the Constitution of India, the petitioner has assailed the order dated 20.4.2006 passed by the learned Civil Judge (Jr.Division), Bhadrak in T. Suit No.77 of 2000-I, whereby and whereunder, the application filed by the opposite party under Order 26, Rule 9 C.P.C. to depute a Survey Knowing Commissioner was allowed.

(2.) The opposite party as plaintiff filed a suit for permanent injunction in the court of the learned Civil Judge (Jr. Division), Bhadrak, which is registered as T. Suit No.77 of 2000-I. The case of the plaintiff is that father of the defendant sold the disputed land on 10.2.77 by means of a registered sale deed to the plaintiff and delivered possession. The kissam of the land is homestead, but the same had been wrongly recorded as sarada. Since the plaintiff was regularly absent from the State for his business, the suit property could not be recorded in a separate holding in his name. Taking advantage of the same, the defendant threatened to demolish the boundary wall put by the plaintiff.

(3.) Pursuant to issuance of summons, the defendant filed written statement denying assertion made in the plaint. The case of the defendant-petitioner is that in an amicable settlement, the suit property fell in the share of his father and out of the total A0.76 decimals of land, he sold A0.63 to different persons including the suit land. In the major settlement, R.O.R. the lands were recorded in the name of the respective purchasers and the rest was recorded in the name of his father. It is further stated that out of C.S. Plot No.913, by a registered sale deed dated 10.2.1977, his father sold an area of A0.06 decimals in favour of Ram Das Agrawal, the brother of the plaintiff. The rest area was recorded in the name of the brother of the plaintiff under M.S.Khata No.650, M.S.Plot No.988. The area has been enhanced to A0.11 decimals instead of A0.10 decimals.