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Judgment
Arindam Sinha, J
Mr. Mishra, learned senior advocate appears on behalf of petitioners. He submits, his clients are defendant nos. 1, 2 and 3 in C.S. no.1 of 2018 filed
in Court of Civil Judge (Senior Division), Berhampur. He submits, other defendants are government functionaries. Opposite party-plaintiff has filed the
suit for declaration of title alleged over the property and his claim of restraint against encroachment by petitioners. His clients filed written statement.
Then opposite party filed petition under rule 9 in order XXVI, Code of Civil Procedure and by impugned order dated 18th December, 2021 Surveyor
Knowing Commissioner (SKC) was appointed. Said order is illegal and passed on material irregularity. There be interference.
Rule 9 in order XXVI gives discretion to the Court to require local investigation, inter alia, for purpose of elucidating any mater in dispute. It appears
from the suit that location of boundary wall constructed by petitioners, is a matter of dispute. However, Mr. Mishra wants to establish that no order for
commission can be made on a suit for declaration, without ascertaining title of plaintiff.
Issue notice along with copy of this order on opposite party no.1. Petitioner will put in requisites.
List on 4th February, 2022. The interim application will be considered on returnable date. Petitioner is at liberty to produce the order before the suit
Court and pray for adjournment.
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