Alok Chandra Das And Others vs Bishnu Charan Das And Others

 K.R. Mohapatra, J

This matter is taken up through video conferencing mode.

Heard Mr. Dash, learned counsel for the Petitioners and Mr. Mohapatra, learned counsel for the Opposite Parties.

The Petitioners in this CMP seek to assail the order dated 4th March, 2021 (Annexure-3) passed by learned Civil Judge (Senior Division), Jajpur

Road in C.S. No. 381 of 2007, whereby he rejected an application filed by the Plaintiffs-Petitioners under Order XXVI Rule-9 C.P.C. for deputation

of a survey knowing commissioner.

Mr. Dash, learned counsel for the Petitioners submits that although the area of C.S. Plot No. 1277 has been shown as Ac.0.06 decimals in the

R.O.R., but on field the same is Ac.0.04.5 links. Thus, in order to compare with Sabik and Hal map of Plot No. 1277, a survey knowing commissioner

should deputed. He further submits that the Petitioners had made an endeavour to measure the land through a private Amin, but due to the opposition

of the Defendants, they could not do so. As such, at the stage of argument, a petition under Order XXVI Rule 9 C.P.C. was filed. Learned Civil

Judge without considering the purpose for which the petition has been filed most illegally dismissed the same. Hence, this CMP has been filed.

Mr. Mohapatra, learned counsel for the Opposite Parties vehemently objected to the same and submitted that at no point of time, the Plaintiffs-

Petitioners had made any endeavour for measurement of the land through a private Amin. Only after closure of the evidence, when the matter was

posted for argument, such an application has been filed to delay the matter. It is his submission that learned Civil Judge in the impugned order has

categorically held that the evidence available on record is sufficient to adjudicate the suit. Hence, there is no requirement for deputation of a survey

knowing commissioner. In view of the above, he prays for dismissal of CMP.

Heard learned counsel for the parties and perused the impugned order including the materials available on record.

The contention of learned counsel for the Petitioners is that in order to measure the area of C.S. Plot No. 1277 under C.S. Khata No. 430 in mouza

Soti in the district of Jajpur and to compare the Sabik and Hal map, deputation of a survey knowing commissioner is necessary. On consideration of

the materials, learned trial court came to a categorical conclusion that the suit has been instituted for declaration of right, title, interest and for a

declaration in respect of MS Plot No. 1515 measuring an area of Ac. 0.02 decimals corresponding to C.S. Plot No. 1277 under CS Khata No. 430 in

mouza Soti. On scrutiny of the pleadings, learned trial court found that alleged Hal Plot No. 1515 is no more a disputed land as the same has not been

inserted in the schedule of the plaint. As against Plot No. 1514 no relay has been sought for by the Plaintiffs. In the aforesaid circumstances, learned

trial court came to the conclusion that relay of CS Plot No. 1277 with MS Plot No. 1514 along with MS Plot No. 1515 will not be helpful in disposal of

the suit.

Learned counsel for the Petitioners also could not produce any material to show that the Petitioners had, in fact, made an endeavour to measure the

land through a private Amin save and except the bald pleadings made in the petition under Order XXVI Rule 9 C.P.C. A reasoned order has been

passed taking into consideration the averments made in the petition and arguments of the parties. In that view of the matter, I am not inclined to

interfere with the same. Accordingly, the CMP stands dismissed.

As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order

available in the High Court’s website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide

Court’s Notice No.4587, dated 25th March, 2020 as modified by Court’s Notice No.4798, dated 15th April, 2021.

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