NANDA BEHERA Vs. AKSHAYA KUMAR BEHERA AND OTHERS

JUDGEMENT

(1.) Defendant no.3, as appellant, has filed this intraCourt appeal seeking to set aside the order dated 27.08.2015 passed by learned Single Judge in CMP No.195 of 2015.

(2.) The factual matrix of the case is that respondents no.1 to 4, as plaintiffs, filed Civil Suit No.34 of 2010 on 02.04.2010 in the court of learned Civil Judge (Junior Division), Salipur for correction of their map of consolidation plot no.1020, permanent injunction and other consequential reliefs. On receipt of the notice, the appellant-defendant no.3 filed counter claim on 25.01.2012 for correction of map of his consolidation plot no.1018, permanent injunction and other consequential reliefs. At the stage of evidence, respondents no.1 to 4 examined P.W.2, a private survey knowing Amin, whereas the appellant examined D.W.2, another private survey knowing Amin. Both the private Amins, namely, P.W.2 and D.W.2 visited the spot and measured the suit plots as per the field and map, and submitted their reports in the court below. There was a conflict in the reports of both the private Amins. Consequentially, the appellant-defendant no.3 filed an application under Order-XXVI Rule-9 read with Section 151, CPC for calling for report from the Civil Court survey knowing Commissioner regarding actual area of plot no.1018 (appellant's plot) and plot no.1020 (plot of the respondents no.1 to 4) as per the consolidation map. The said application was allowed on contest by learned Civil Judge (Junior Division) by order dated 23.07.2014. Pursuant thereto, the Civil Court Commissioner measured the plots no.1018 and 1020 as per consolidation map, prepared the report on 08.12.2014 and submitted the same in the court below on 10.12.2014.

(3.) On receiving the report from the Civil Court Commissioner, learned Civil Judge (Junior Division) posted the case to 17.12.2014 for consideration of the said report. As none had filed objection to the said report of the Civil Court Commissioner, the matter was posted to 23.12.2014 for orders. By order dated 23.12.2014, learned Civil Judge (Junior Division) accepted the report and formed it part of the record. Aggrieved by the said order dated 23.12.2014 of learned Civil Judge (Junior Division) accepting report of the Civil Court Commissioner, respondents no.1 to 4 filed CMP No.195 of 2015 before this Court. Learned Single Judge, by order dated 27.08.2015, set aside the order dated 23.12.2014 passed by the learned Civil Judge (Junior Division) stating inter alia that when the appellant-defendant no.3 had prayed for to find out the actual area of plot no.1018 and plot no.1020 in consolidation map, learned Civil Judge (Junior Division) could not have accepted the report after having acceded to the request of the appellantdefendant no.3 to depute a survey knowing Amin Commissioner without measuring the suit land.