MINAKHEE ROUT Vs. BAURIBANDHU SAMAL & OTHERS

JUDGEMENT

(1.) This Civil Miscellaneous Petition involves a challenge to an order passed by the Second Additional Civil Judge (Senior Division), Cuttack in the matter of rejection of an application for appointment of Commission to make local investigation under the provision of Order 26, Rule 9 of the Code of Civil Procedure.

(2.) Short background involved in the case is that the petitioner being the plaintiff filed a suit for declaration of title against the defendants on the basis of an oral agreement dated 31.1.1995 between the plaintiff and the defendant No.1 (opposite party no.1) and his mother. Petitioner-plaintiff claimed that plaintiff paid a sum of Rs.40,000/- on the very date to the defendant no.1-opposite party no.1 with his mother to purchase a piece of land measuring Ac.0.020 decimals from plot no.747 under Khata no.1511 in Mouza-Cuttack Sahar, Unit No.23. It is claimed that since the plaintiff and defendant no.1 as well as his mother are all related, the transaction was on oral agreement with condition to enter into a sale deed after obtaining Urban Land Ceiling permission. It is also claimed by the plaintiff that on payment of the aforesaid amount, she occupied the suit premises and remained there after making necessary repairs, as the house was a thatched one. Although the agreement was for sale of Ac.o.020 decimals of land but the plaintiff forcibly occupied an area of Ac.0.023 decimals. While the matter stood thus, it is claimed that with the intention to sale the land measuring Ac.0.020 decimals and the opposite party no.1 along with his mother executed an agreement on 1.9.1997 behind the back of the plaintiff-petitioner with wrong disclosure therein. It is ascertained that a sale deed was consequently executed and registered on 26.11.1997 involving only Ac.0.015 decimals instead of Ac.0.020 decimals under the pretext of permission of the competent authority to the above extent only. On failure of defendant no.1 and his mother's executing a sale deed for the remaining area of Ac.0.008 decimals having a cow shed in a tin roof house and a thatched house, finding no other alternative, the plaintiff-petitioner filed Civil Suit No.296 of 2009. The defendant no.1 and defendant nos.3 to 6 on their appearance challenged the claim of the petitioner seriously objecting the claim on the basis of oral agreement for sale of land to the extent of Ac.0.023 decimals. During trial, of the proceeding, the plaintiff-petitioner filed an application under Order 26, Rule 9 of the Code of Civil Procedure for appointment of a commission for local investigation involving the suit plot involved therein.

(3.) Confining her argument, Ms.Gayatri Das, learned counsel appearing for the petitioner submitted that for the pleading available therein and serious dispute with regard to existence of a cow shed over the disputed property, the plaintiff-petitioner had a clear case asking the trial court for obtaining a report from the Commissioner on local investigation of the suit property. Taking this Court to the provisions contained in Order 26, Rule 9 of the Code of Civil Procedure and the reasons assigned in the impugned order, learned counsel appearing for the petitioner submitted that in the existence of the dispute, the trial court failed in appreciating the application of the provision and arrived at wrong conclusion and passed erroneous impugned order, which unless be interfered, will result in a bad law. Referring to the decisions rendered in the case of Ram Prasad Mishra v. Dinabandhu Patri and another, 2012 Supp2 OrissaLR 520, in the case of Shreepat v. Rajendra Prasad and Ors, 2000 7 JT 379 and in the case of Mahendranath Parida v. Purnananda Parida and others, 1998 AIR(Ori) 248, learned counsel for the petitioner submitted that the above decisions have direct bearing on the case at hand and the impugned order thus not only becomes bad for the decision hereinabove but also required to be interfered and set aside.