RAMAKANT NAIK AND ORS. Vs. BHANJA DALABEHERA

JUDGEMENT

(1.) The instant challenge is to laciniate the order dated 11.12.2008 passed by the learned Civil Judge (Senior Division), Aska in C.S. No.71 of 2005 rejecting the application of the petitioners to depute a survey knowing Commissioner or the Tahasildar to demarcate the suit land.

(2.) The opposite party as plaintiff instituted C.S. No.71 of 2005 in the court of learned Civil Judge (Senior Division), Aska seeking declaration of right, title and interest, recovery of possession and for permanent injunction to restrain the defendants from entering upon the suit land in respect of Hal Survey Nos.659, 660, 661 and 719 of village Saranpanka, appertaining to Khata No.72/23, Tahasil Sorada, which corresponds to Sabik Survey No.668/1-A. The defendants in their written statement have pleaded that in a ceiling surplus proceeding the lands appertaining to Survey No.668/2 have been settled in their favour. The Tahasildar has demarcated the suit lands and gave delivery of possession in their favour. It is further pleaded that Sabik Survey No.668/1-A is different from Sabik Survey No.668/2.

(3.) While the matter stood thus, the defendants filed an application under Order 26 Rule 9 CPC to appoint the survey knowing Commissioner or the Tahasildar to demarcate the lands covered under road Survey No.668/1-A and Survey No.668/2. The same was objected to by the plaintiff. By order dated 11.12.2008, learned trial Court rejected the said application holding, inter alia, that since the suit land has been demarcated by the Tahasildar in presence of the witnesses in a demarcation proceeding much prior to the institution of the suit, there is no necessity to appoint a survey knowing Commissioner for fresh measurement.