DHADI MUDULI Vs. NATABAR MUDULI

JUDGEMENT

(1.) This writ application is directed against the order dated 31.8.2002 passed by the learned Civil Judge (Jr.Division), Nimapara in Title Suit No. 31 of 2003 rejecting the petition filed by the petitioner under Order -26, Rule 9 for deputing a survey knowing commissioner as well as the order of dismissal of revision filed by him before the Ad hoc Additional District Judge, Puri.

(2.) THE petitioner had filed the aforesaid suit for declaration of title and permanent injunction apart from other consequential reliefs. Thecase of the petitioner is that in the R.O.R. of 1927 settlement the C.S. Plot No. 1013 covering an area of Ac.0.04 decimals under C.S. Khata No. 176 in Mouza -Sudhikeshar stood recorded in the name of San Sundari Muduli and Sasi Muduli in. stitiban status and that they were possessing the same and using it as homestead. Sasi Muduli died leaving behind Nata Muduli as his only legal heir who is defendant in the suit. The plaintiff -petitioner is the legal heir of San Sundari Muduli and an application was filed by the petitioner under Order 26, Rule 9 of the C.P.C. to ascertain.

(3.) SHRI S.K. Mishra, the learned Counsel appearing for the petitioner drew attention of the Court to the paragraph -8 of the trial Court order and submitted that since the trial Court was of the view that items No. 5 and 6 could be better answered by the survey knowing person, the Court should have at least appointed a survey knowing commissioner for the purpose of ascertaining the question raised in respect of the said two items.