Ratani Sahoo And Others vs Kabi Das And Others

Dr. A.K.Rath, J

This petition challenges the order dated 02.08.2018, passed by the learned Additional Civil Judge (Senior Division), Dhenkanal, in C.S. No.261 of

2012, whereby and whereunder, the trial court has rejected the application of the plaintiffs-petitioners under Order-26 Rule-9 CPC for appointment of

a Civil Court Commissioner.

Nanda Sahoo, predecessor in interest of the petitioners instituted the suit for declaration of title and permanent injunction. Defendant-opposite party

no.1 entered appearance and filed written statement denying the assertions made in the plaint. While matter stood thus, plaintiffs filed an application

under Order-26 Rule-9 CPC for appointment of a Civil Court Commissioner. It is stated that they have purchased schedule-A and B properties by

means of a registered sale deed dated 10.02.1969. But the same has been wrongly recorded in the name of defendant no.1. Defendant no.1 pleaded

that sabik suit plot does not correspond to Hal Plot No.1172. The settlement entry is correct. In view of the same, the Civil Court Commissioner may

be appointed. The defendant objected to the same. By order dated 2.8.2018, learned trial court rejected the application holding that the matter can be

proved by documentary evidence.

Mr. Samir Kumar Mishra, learned counsel for the petitioners submits that the dispute pertains to Hal Plot No.1172 measuring an area of Ac0.46

dec. (suit schedule land). It is expedient to depute a Civil Court Commissioner to ascertain as to whether the suit schedule land has been wrongly

shown as ‘Nala’ merged with eastern side ‘Nala’, corresponds to purchased land of the petitioners. Learned court below has committed

a manifest illegality in holding that in the event the petition is allowed, the same will amount to collection of evidence.

Per contra, Mr. Hrudananda Mohapatra, learned counsel for the opposite party no.1 submits that there is no dispute with regard to location and

identification of the land. The petitioners assert for wrong recording of the land in the name of the defendant no.1. The same can be proved by

documentary evidence. Learned trial court has rightly rejected the application of the petitioners.

In Mahendranath Parida Vrs. Purnananda Parida and others, AIR 1988 Ori 248, this Court held:

“5. When the controversy is as to identification, location or measurement of the land or premise or object, local investigation should be done at an early stage so

that the parties are aware of the report of the Commissioner and go to trial prepared. The party against whom the report may have gone may choose to adduce

evidence in rebuttal. .....â€​

Reverting to the facts of this case and keeping in view the law laid down by this Court in the case of Mahendranath Parida, this Court finds that the

dispute centres round Hal Plot No.1172, appertaining to Hal Khata No.217, measuring an area of Ac0.46 dec. of Mouza-Simulia in the district of

Dhenkanal. Plaintiff asserts that in the Hal ROR the suit land has been wrongly recorded in the name of defendant no.1. The stand of the defendant

no.1 is that sabik plot does not correspond to Hal Plot. The dispute does not pertain to measurement, identification and location of the land. The same

can be resolved by plot index. Learned trial court is perfectly justified in holding that the matter can be resolved by documentary evidence.

The impugned order does not suffer from any illegality or infirmity, warranting interference by this Court under Article 227 of the Constitution. The

petition is dismissed. There shall be no order as to costs.

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