GOVINDA NAHAK Vs. JURIA GOUDA

JUDGEMENT

(1.) This petition challenges the order dated 16.12.2014 passed by the learned Civil Judge (Senior Division), Aska. By the said order, the learned trial court rejected application of the defendants under Order 26, Rule 9 C.P.C. to appoint S.D.O., Minor Irrigation, Hinjilicut as Commissioner for local investigation and to submit report about the water channel.

(2.) The opposite parties as plaintiffs instituted the suit for mandatory injunction directing the petitioners-defendants to fill the channel over the suit land and permanent injunction. The case of the plaintiffs is that the suit land appertaining to Hal Khata Nos.552 and 91, Hal Plot Nos.1382, 1376 and 1334 measuring an area Ac.0.210 dec. of mouza-Sahaspur under Sanakhemundi Tahasil belong to them. The Government of Orissa constructed the Rushikulya canal, which passes through village Sahaspur. The said canal exists to the west of the suit plot. While the matter stood thus, some of the villagers of Sahaspur including the defendants-petitioners, who belong to village Tulasipadar, dug a channel in the year 1987 for the purpose of irrigation and damaged crops. The plaintiffs filed Misc.Case No.5 of 1987 before the Tahasildarcum-Irrigation Officer, Digapahandi praying for a direction to the defendants to fill up the channel. The same was allowed on 6.5.1989. The defendants had been restrained not to interfere with the possession of the plaintiffs. Against the said order, the defendants preferred an appeal. The same was dismissed. Thereafter the defendants filed revision before the Collector, Ganjam, which met the same fate. In the consolidation operation, the suit plot was recorded in the name of the plaintiffs, but the kissam of the land has been described as 'Nala' and 'Pani Nala'. When the Collector, Ganjam issued a notification to acquire the land under the Land Acquisition Proceeding, the plaintiffs filed T.S.No.4 of 1998 before the learned Civil Judge (Junior Division), Aska challenging the said notification. The suit was decreed.

(3.) Pursuant to issuance of summons, the defendants-petitioners entered appearance and filed written statement denying the assertions made in the plaint. While the matter stood thus, the defendants filed an application under Order 26, Rule 9 C.P.C. to appoint S.D.O., Minor Irrigation, Hinjilicut as Commissioner to make an investigation as to whether the water channel exists or not ; whether the land owners are getting irrigation facilities from the same, flow of water to the lands of the defendants and other land owners of four villages, the height of the land of the plaintiffs from the water source of Rushikulya canal and the number of tenants getting facilities. The plaintiffs filed objection stating therein that since the S.D.O., Minor Irrigation Project of Hinjilicut is a Government official and the plaintiffs earlier filed a suit against the Government before the learned Civil Judge (Junior Division), Aska and the same being decreed in their favour, against which the Government did not choose to prefer an appeal, the said authority cannot be appointed as Commissioner in the suit. It is further stated that the Court should not appoint any Commissioner to collect evidence. The defendants have filed the application to protract litigation. The learned trial court came to hold that determination of age of the suit channel, its length, width and depth, whether it is maintained by the Irrigation Department, the beneficiaries, the height of plaintiffs' land in comparison to the suit channel and the impact if the suit channel is closed can be proved by adducing oral as well as documentary evidence. The defendants cannot be allowed to collect evidence by the process of the Court. If an expert Commissioner will be appointed for local investigation, the same would amount to collection of evidence.