SANKU RANGA RAO Vs. DEVI PRASAD SAHU

JUDGEMENT

(1.) The plaintiff in Title Suit No. 131 of 1986-I of the Court of the Munsif, Parlakhemundi has filed this revision petition challenging the Order dt. 31-10-1987 rejecting his application under O.26, R.9, Civil Procedure Code for appointment of a Commissioner for measuring the disputed property to ascertain the encroachment by the defendant-opposite party No. 1 on his land.

(2.) The gist of the case, as it appears from the impugned Order, is that the plaintiff and defendant 2, the two brothers were allotted adjacent plots of land in the partition of the family properties in 1959 and continued in exclusive possession of their respective plots since then. Thereafter, defendant 2 sold a portion of the land allotted to him to defendant 1 lying just adjacent to the plaintiffs land. It is the further case of the plaintiff that the defendant 1, the purchaser, encroached upon a portion of his land and threatened to make construction thereon. Therefore he filed the suit for declaration of title to the property described in the schedule to the plaint and for permanent injunction against defendant 1 restraining him from encroaching upon any portion of the said land and from making any construction thereon. On the application under O.39, R.1, C.P.C. filed by the plaintiff, an order of interim injunction was passed by the trial court. It is relevant to mention here that the plaintiff categorically stated in the application under O.26, R.9, C.P.C. for appointment of a Commissioner that before filing the suit he had got his land as well as that of defendant I measured by a survey knowing Commissioner, one B. Narasimhulu and on the bash of the report of the said Commissioner he described the encroached land in the schedule to the plaint. After defendant 1 appeared in the suit and filed his written statement, he filed an affidavit of the said surveyor B. Narasimhulu stating that defendant 1 had not made any encroachments on the plaintiffs land, contrary to his earlier report. Under such peculiar situation he sought assistance of the Court to appoint a survey knowing Commissioner for ascertaining the real state of facts.

(3.) It appears from the impugned Order that the learned Munsif did not accept the prayer of the plaintiff mainly on the grounds that sending a Commissioner for local investigation at that stage was not proper and the parties could get the land measured by a private Commissioner. He relied on the decision of this Court in the case of Indramani Behera v. Ghanashyam Behera, reported in (1986) 62 Cut LT 398. The learned Munsif further observed that if at an appropriate stage the Court feels the necessity for it, may appoint a Commissioner.