LALTOOMANI MOHANTY Vs. FIRST ADDITIONAL DISTRICT JUDGE CUTTACK

JUDGEMENT

(1.) This is a petition filed under Article 227 of the Constitution seeking quashing of the judgment and order dated 21-1-1995 (Annexure-2) by which the learned Ist Additional District Judge, Cuttack in Civil Revision No. 68 of 1994 has set aside the order of the trial Court accepting the report of the survey knowing Commissioner.

(2.) Facts leading to filing of this writ petition briefly are as follows : The petitioner as plaintiff has commenced R.S. No.114 of 1990 in the Court of the Ist Munsif, Cuttack against opposite parties 2 and 3. The suit is for removal of the latrine and cock-pit constructed by the opposite parties 2 and 3 adjacent to the east of the compound wall of the petitioner in plot Nos. 2008 and 2012 of Hal khata Nos. 719 and 677 (corresponding to part plot Nos. 79 and 80 of Sabik khata No. 54) located at Bakharabad in Cuttack. It is the allegation of the petitioner that the said opposite parties 2 and 3 constructed the latrine by encroaching upon the compound wall of the petitioner. On 22-11-1990 the petitioner filed a petition praying for appointment of a Civil Court Commissioner to visit the disputed spot and answer on the points indicated in the petition. The opposite parties 2 and 3 filed their objection contending, inter alia, that the petition was not maintainable. The learned Munsif after hearing both the sides, by order dated 8-1-1991 appointed a Civil Court Commissioner by observing as follows :

(3.) The learned Additional District Judge in the impugned decision has observed that the trial Court by passing a 'strained order' accepted the report of the survey knowing Commissioner. By giving specific reasons in paragraph 5 of the impugned decision, the learned Additional District Judge has set aside the order accepting the Commissioner's report and directed the trial Court, if necessary, to depute another survey knowing Commissioner. We need not repeat those reasons because of the order we are going to pass in the matter.