NAYANA MANJARI SAHOO Vs. RAJAKISHORE SAHOO AND ANOTHER

JUDGEMENT

(1.) This petition challenges the order dated 2.9.2016 passed by the learned Addl. Civil Judge (Junior Division), Narasinghpur in I.A No. 06 of 2016 arising out of C.S. No. 20 of 2016 whereby the learned trial court rejected the application of the plaintiff under Order 26, Rule 9 Civil Procedure Code holding, inter alia, that the appointment of commission can only be considered after closure of evidence.

(2.) The petitioner as plaintiff instituted C.S. No. 20 of 2016 in the court of the learned Addl. Civil Judge (Junior Division), Narasinghpur for permanent injunction impleading the opposite parties as defendants. The case of the plaintiff is that she is the owner of an area of Ac.0.125 dec. appertaining to Khata No. 574/376, Plot No. 1865/2948 of Mouza-Paikapadapatna in the district of Cuttack. The defendant no.1 is the adjacent owner of the suit land towards the northern side. The suit land is bounded by pillars. Taking advantage of the absence of the plaintiff, defendant no. 1 removed the boundary pillars and stacked the materials to build a house. The plaintiff applied for demarcation of the suit land in Misc. Case No. 12 of 2016 before the Tahasildar, Narasinghpur. The defendant no. 1 did not allow the amin to measure the land. Defendant no. 1 continued the construction work forcibly and unauthorisedly encroaching upon the suit land.

(3.) Pursuant to issuance of summons, defendants entered appearance and filed a written statement denying the assertions made in the plaint. The specific case of the defendants is that they have not encroached upon any portion of the suit land. While the matter stood thus, the plaintiff filed an application under Order 26, Rule 9 Civil Procedure Code to depute an amin commissioner for identification and demarcation of the suit land. It is stated that she made an application to the Tahasildar, Narasinghpur to depute an amin to demarcate the suit land. The defendants did not cooperate for which the amin was unable to identify the land. The defendants filed an objection to the same. Learned trial court came to hold that no evidence has been adduced by the parties. Appointment of commission can be considered after closure of evidence, when the court finds it difficult to pass effective decree on the existing evidence. Held so, learned trial court rejected the application.