HALU @ HALURI JENA Vs. MANMOHAN DAS & ANOTHER

JUDGEMENT

(1.) By this application under Article 227 of the Constitution, challenge is made to the order dated 19.3.2014 passed by the learned Civil Judge (Junior Division), Khurda in C.S. No.52 of 2006 whereby and whereunder learned trial court accepted the report of the survey knowing commissioner.

(2.) Opposite party no.1 as plaintiff instituted the suit for declaration of right, title and interest as well as mandatory injunction impleading the petitioner and opposite party no.2 as defendants. The defendants filed a written statement denying the assertions made in the plaint. While the matter stood thus, the plaintiff filed an application under Order 26 Rule 9 CPC for deputation of a survey knowing commissioner to ascertain as to whether the suit land is a part and parcel of the plaintiff's homestead suit plot no.1378 or defendants' homestead plot no.1379. Learned trial court allowed the same and deputed a survey knowing commissioner. The commissioner submitted the report along with field book and map. The defendants filed an objection contending, inter alia, that the commissioner has not measured the land from fixed point. He had taken an imaginary fixed point and measured the land. Learned trial court overruled the objection filed by the defendants and accepted the report.

(3.) Heard Mr. Mohapatra, learned counsel for the petitioner and Mr. Mishra, learned counsel for the opposite party no.1.