LAWS(ORI)-2016-1-29

MADHUSUDAN SAHU Vs. BANAMALI KHADIRATNA

Decided On January 18, 2016
MADHUSUDAN SAHU Appellant
V/S
Banamali Khadiratna Respondents

JUDGEMENT

(1.) By this petition under Article 227 of the Constitution of India, challenge is made to the order dated 28.10.2006 passed by the learned Additional District Judge, Deogarh in R.F.A. No. 2 of 2005, whereby and whereunder, the application filed by the appellant under Order 26, Rule 9 C.P.C. for appointment of a Survey Knowing Commissioner has been rejected.

(2.) The petitioner as plaintiff instituted C.S. No. 26 of 2002 in the court of the learned Civil Judge (Sr. Division), Deogarh for declaration of right, title and interest and delivery of possession of the suit land impleading the opposite party as defendant. The suit was dismissed. Challenging the judgment and decree passed by the learned trial court, the petitioner filed R.F.A. No. 2 of 2005 in the court of the learned Additional District Judge, Deogarh. During pendency of the appeal, the petitioner filed an application under Order 26, Rule 9 C.P.C. for appointment of a Survey Knowing Commissioner. It is stated that pursuant to the order of the Tahasildar, Deograh in Identification Case No. 189 of 2002, the R.I., Kantapali measured and demarcated the land. Thereafter suit was filed basing on the report of the R.I., Kantapali, Ext. 5. The R.I. was examined as P.W.4. The defendant -respondent in his written statement has neither denied nor disputed the contents of the demarcation of the suit land. But then no issue was framed with regard to the correctness of the identification of the suit land for which the plaintiff could not file an application under Order 26, Rule 9 C.P.C. The learned trial court disbelieved the testimony of P.W.4 and dismissed the suit. The respondent filed objection to the same. By order dated 28.10.2006, the learned appellate court rejected the application holding, inter alia, that judgment of the lower court reveals that the identification report of P.W.4 was challenged by defendant. P.W.4 was subjected to extensive cross -examination. Further, the appellant intended to reagitate the matter in the appeal.

(3.) Heard Mr. S. Mishra on behalf of Mr. Ramakanta Mohapatra, learned Senior Advocate for the petitioner and Mr. D. Pattnaik on behalf of Mr. D.K. Mishra, learned Advocate for the opposite party.