ARUNA KUMARI MISHRA Vs. UTKAL UNIVERSITY AND ORS.

JUDGEMENT

(1.) Assailing the order dated 15.4.2008 passed by the learned 2nd Additional Civil Judge (Sr. Division), Bhubaneswar in T.S. No. 542 of 1998, the instant petition has been filed under Article 227 of the Constitution of India. By the said order, the learned trial court rejected the application of the plaintiff under Order 26 Rule 9 C.P.C. to depute a Survey Knowing Commissioner for local investigation.

(2.) The petitioner as plaintiff instituted T.S. No. 542 of 1998 in the court of the learned 2nd Additional Civil Judge (Sr. Division), Bhubaneswar for declaration of right, title, interest and possession over 'A' and 'C' schedule property, recovery of possession of 'B' schedule property, easementary right over 'D' schedule property and permanent injunction restraining the defendants from interfering with her possession and other consequential reliefs. Pursuant to issuance of summons, the defendants entered appearance and filed written statement denying the assertions made in the plaint. After closure of evidence, an application under Order 26 Rule 9 C.P.C. was filed by the plaintiff to depute a Survey Knowing Commissioner for local investigation of the suit plot and to ascertain (1) whether the existing northern boundary wall raised by Utkal University is within the area of drawing plot No. 7(A) as indicated in the Drawing No. 670 as has been filed by defendant No. 1, (2) as to whether hal plot No. 37/614 as per the Hal Map corresponds to drawing No. 7(A) allotted in favour of the Utkal University as revealed from the certified copy of the drawing No. 670, (3) whether to the further north of the north boundary wall constructed by Utkal University any area of plot No. 37/614 are still available or the same is coming under hal plot No. 36 and (4) whether in between the northern boundary wall line of plot No. 7(A) and sabik plot No. 68 there was any other plot in sabik position. The defendants 1 and 2 filed objection to the same stating that on earlier occasion, this Court appointed a Civil Court Commissioner to measure the land to find out if any of the parties has raised any construction on the land of others and if so, remove the same. The Additional Chief Judicial Magistrate, Bhubaneswar was directed to submit the report. The Additional Chief Judicial Magistrate had submitted its report and the plaintiff has admitted the same. To patch up the lacuna, this petition has been filed. There is no necessity to appoint another Commissioner once again. By order dated 15.4.2008, the learned trial court came to hold that Ext. D, which was finally published on 13.4.1987, shows that plot No. 37/614 appertaining to khata No. 78 of mouza -Vani Vihar stands recorded in the name of Utkal University. The Government of Orissa, which is lessor, have stated in the pleadings as well as in the evidence that the said land had been leased out, which is proved under the cover of Ext. C. and possession was handed over to University. The report of the higher judicial officers after measurement by the survey knowing experts in presence of both the parties has been proved. Thus, there is no special circumstance to exercise the discretion conferred on him in favour of the plaintiff. The learned trial court further held that in the event, a Commissioner is deputed, it may cause prejudice to the defendants. Held so, the learned trial court rejected the application.

(3.) Heard Mr. R.C. Sarangi, learned counsel for the petitioner and Miss. Meera Ghosh, learned counsel for opposite parties 1 and 2 as well as the learned Additional Government Advocate for opposite parties 3 and 4. None appeared for opposite party No. 5.