Srimati Basanti Prusty vs Srimati Manorama Samanta

P.K. Misra, J.—Plaintiff is the Appellant against a confirming decision. Suit was filed for eviction of the Defendant from ''Kha'' Schedule land and for damages at the rate of Re. 1/- per day. According to Plaintiff''s case, she had purchased ''Ka'' Schedule land by registered sale deed dated 21-11-1981 and there-after constructed a compound wan on all sides leaving a space of 306 square links as described in ''Kha'' Schedule towards the north. After about one year, the Defendant purchased land towards north from the very same vendor on 10-3-1983 and started construction of a ''chalia'' on ''Kha'' Schedule land. The Plaintiff measured the land through an Amin and such measurement indicated that ''Kha'' Schedule land was within the land purchased by the Plaintiff and the Defendant had agreed to remove the shed, but subsequently, refused to do so resulting in the present suit.

Defendant in her written statement denied the allegations made in the plaint. She pleaded that the Plaintiff did not leave any space beyond her boundary wall on the northern side and the Defendant was in possession of the land purchased by her.

Both the courts below have negative the plea of the Plaintiff and dismissed the suit.

The present Defendant-respondent has filed a suit numbered as Title Suit No. 182 of 1987 in the Court of the Civi1 Judge (Junior Division), First Court, Cuttack, claiming title and possession in respect of Ac. 0.006 decimals of land towards south of the northern side boundary wall of the present Appellant. The present Appellant has filed a petition under Order 41, Rule 27, Code of Civil Procedure, for producing the aforesaid plaint as additional evidence. The Appellant has also sought to admit certain other documents namely, Records-of-Rights in the names of the Appellant, Respondent and another, as additional evidence.

Though several contentions have been raised by the Appellant, I think, keeping in view the peculiar facts and circumstances of the case, it is necessary to remand the matter to the trial court for fresh disposal.

It appears that during the pendency of the suit, the present Appellant had filed an application under Order 26, Rule 9, C.P.C., for deputing a Survey-knowing -Commissioner to measure the disputed land and to report as to whether such disputed land was a part of the purchased land of the Appellant or not. The trial court had rejected such application. During the pendency of the appeal before the lower appellate court, a similar application was filed which has also been rejected. Keeping in view the nature of dispute, the main questioned be decided is as to whether the ''Kha'' ''schedule land was a part of the purchased land of the Plaintiff or not. Even though the Plaintiff herself had taken a private Amin for measurement, both the Courts below have refused to place any reliance upon the report of such private Amin. Since the main question related to boundary dispute, it would have been more appropriate and in the interest of justice for the trial court to depute a ''Survey-knowing- Commissioner for the purpose of measurement of the disputed land as well as the land of the Plaintiff within the boundary wall and the land of the Defendant. Admittedly, the Respondent in the meantime has filed another suit claiming that the present Appellant has encroached upon a portion of the land subsequently purchased by the Respondent. In the latter suit, the question would be decided primarily on the basis of measurement to be effected. Since the boundary dispute between the parties is continuing, to resolve the dispute it is necessary to depute a Survey-knowing -Commissioner. It is, of course, true that the report of a Survey-knowing- Commissioner is only a piece of evidence to be considered along with the other evidence. However, the importance of such report cannot be over-emphasized.

Accordingly, I vacate the decisions of both the courts below and remand the matter to the trial court for fresh disposal with a direction that a Survey-knowing -Commissioner should be deputed to measure the lands of both the parties and to find out as to whether the disputed land is a part of the purchased land of the Plaintiff or the purchased land of the Defendant. obviously, similar course is to be adopted in the suit filed by the Respondent. It is made clear that no opinion has been expressed on the merit of the contentions raised by the Appellant or the Respondent and the matter should be re-disposed of in accordance with law without being influenced by any observation made in the present judgment. There will be no order as to costs.

Second Appeal disposed of, case remanded.