Ninimani Behera And Others vs State Of Odisha And Another

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Order dated 20th July, 2023 (Annexure-7) passed by learned Senior Civil Judge, Nilgiri in C.S. No.263 of 2019 is under challenge in this CMP, whereby an application filed by the Plaintiffs-Petitioners under Order XXVI Rule 9 CPC for appointment of a Survey Knowing Commissioner, has been rejected.

Mr. Dasmohapatra, learned counsel submits that the Petitioners as Plaintiffs filed the suit for declaration of ‘Kha’ Schedule property to be their exclusive property and ROR in respect of the suit property to be wrong. It is pleaded that the suit plot is a part of CS Plot No.210. But in the plot index, it is shown to be part of MS Plot No.594. It is his submission that the relay map of the suit plot has been wrongly prepared. The plot index in respect of MS Plot No.594 is also incorrect. Although the suit plot is a part of CS Plot No.210/15, but plot index indicates that the suit plot corresponds to MS Plot No.594, which is a part of Plot No.213. It is his submission that the plots situated to the north and south of the suit plot are part of CS Plot No.210. Thus, the suit plot by no stretch of imagination would correspond to CS Plot No.213. Since the matter requires to be clarified by technical person, the Plaintiffs-Petitioners after closure of evidence filed an application under Order XXVI Rule 9 CPC for deputation of a Survey Knowing Commissioner to clarify the aforesaid position. Learned trial Court merely holding that plot index indicates the corresponding plot numbers and that evidence has been led in support of the case of the Plaintiffs, rejected the petition. Hence, this CMP has been filed.

Mr. Dasmohapatra, learned counsel submits that the Plaintiffs have adduced evidence in support of their case by filing relevant documents. But, those are insufficient to indicate as to whether the suit plot is a part of CS Plot No.210 or not. This aspect was lost sight of by learned trial Court while adjudicating the petition. Hence, the impugned order under Annexure-7 is liable to be set aside.

Mr. Mohanty, learned Additional Standing Counsel defending the impugned order submits that the Plaintiffs could have examined a private Amin in support of their case. The objective of Order XXVI Rule 9 CPC is not to depute a Survey Knowing Commissioner to indicate the correctness of the plot index. In the instant case, learned trial Court discussing the rival contentions of the parties has passed a reasoned order, which warrants no interference.

Considering the submissions made by learned counsel for the parties, this Court finds that the sole question for which the Plaintiffs-Petitioners sought to depute a Survey Knowing Commissioner is as to whether the suit plot correspondents to CS Plot No.210/15 or not. It is contended by learned counsel for the Petitioners that the plot index in respect of MS Plot No.594 is not correctly prepared. The plot index indicates that MS Plot No.594 is a part of Plot No.213. It is, however, submitted by learned counsel for the Petitioners that documentary as well as oral evidence has been adduced by the Plaintiffs in support of their case. If the Petitioners felt that the evidence available on record is not sufficient to indicate the correctness of the plot index prepared, they should have adduced evidence to that effect. There is also no material on record to show that the evidence available on record is insufficient to identify the suit property. The contention of the Plaintiffs to the effect that plot index is not properly prepared, is an ancillary matter to be taken into consideration in the suit. The question remains as to whether the suit land is identifiable or not. There is no material on record to indicate that the suit land is not identifiable. Further, the Survey Knowing Commissioner cannot clarify the doubt raised by the Plaintiffs-Petitioners.

In view of the above, this Court finds no infirmity in the impugned order under Annexure-7.

Accordingly, the CMP being devoid of any merit stands dismissed.

Urgent certified copy of this order be granted on proper application.

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