GEETARANI PANDA Vs. MANMATH PATRA

JUDGEMENT

(1.) Opposite Parties 1 to 9, as Plaintiffs, filed Title Suit No. 407 of 2004 -1 in the Court of Learned Civil Judge (Senior Division), Balasore, inter alia, praying for declaration of their right, title and interest over the suit schedule lands and for permanent injunction as well as for mandatory injunction for removing the boundary wall constructed by the Petitioner, who is the Defendant in the suit. The Plaintiffs also filed a petition under Order 39, Rules 1 and 2 of the Code of Civil Procedure (hereinafter called as 'the Code') praying to issue ad interim injunction and also a petition under Order 39, Rule 7 of the Code with a prayer to depute a Survey Knowing Commissioner. The Court below allowed the petition and deputed a Commissioner to cause local enquiry. The said order was assailed before this Court in W.P.(C) No. 3813 of 2005 by Defendant, mainly on the ground that the appointment of Survey Knowing Commissioner before the Defendant entered appearance in the suit was not justified. After hearing the Learned Counsel for the parties, this Court disposed of the Writ Petition by setting aside the order, mainly on the ground that the Defendant had not appeared till then and had not filed her written statement. This Court observed that deputing a Survey Knowing Commissioner before appearance of the Defendant was pre -mature. However, this Court permitted the parties to file a petition under Order 26, Rule 9 of the Code, if exigencies arise. Thereafter, it appears, the Defendant appeared and fried her written statement denying the allegations made and taking a stand that no construction had been made by her over the disputed plot. While the matter stood thus, another petition was fried by the Plaintiff under Order 26, Rule 9 of the Code with a prayer to depute a Survey Knowing Commissioner to make local investigation over 'Kha' schedule plaint properties and to answer the following questions. 1. Whether the 'Kha' Schedule disputed land mentioned in the plaint is the part and parcel of M.S. Plot No. 484?

(2.) WHETHER the 'Kha' Schedule land is used as only abutting road of the Plaintiffs to go to the public main road?

(3.) THE Commissioner will show the alleged construction, if any, over the suit land in his local investigation map as well as the field book.