Surendranath Patro vs Pratima Sahu

K.R. Mohapatra, J

1.This matter is taken up through Hybrid mode.

Order dated 26th September, 2023 (Annexure-1) passed by learned Senior Civil Judge (Commercial Court), Berhampur, Ganjam in CS No.396 of 2022 is under challenge in this CMP, whereby an application under Order XXVI Rule 9 CPC filed by the Plaintiff/Petitioner for deputation of a Survey knowing Commissioner has been rejected.

Mr. Sahoo, learned counsel for the Petitioner submits that the suit has been filed by the Plaintiff/Petitioner for declaration of right, title and interest over the suit property and for recovery of possession of the encroached portion of the suit property in favour of the Plaintiff/Petitioner. At the closure of the evidence of both parties, the Plaintiff/Petitioner filed an application under Order XXVI Rule 9 CPC for deputation of a Survey knowing Commissioner to ascertain as to whether the Defendant has encroached upon any portion of the suit land or not. It is his submission that earlier the Defendant had filed a suit for demarcation and a private Amin was deputed at the instance of the Plaintiff /Petitioner. He had submitted a report that the Defendant had encroached upon the suit property. Such document has been exhibited by the Plaintiff/Petitioner as Ext.11 in the suit. In spite of the same, the Defendant has bluntly denied to have encroached any portion of the suit property. In order to ascertain as to whether the Defendant/Opposite Party has encroached upon any portion of the suit property, a Survey knowing Commissioner should be deputed. Learned trial Court, without appreciating the matter in its proper perspective, held that the evidence on record is sufficient for identification of the suit property. Said petition under Order XXVI Rule 9 CPC was thus rejected. Hence, this CMP has been filed.

It is submitted by Mr. Sahoo, learned counsel that before commencement of the trial, the Petitioner had filed a similar nature of application, but the same was rejected. It is his submission that a petition under Order XXVI Rule 9 CPC can be filed at any stage of the suit. Boundary dispute between the parties vis-à-vis encroachment by the Defendant can be best ascertained by deputing a Survey knowing Commissioner. This aspect was not properly considered by learned trial Court. Hence, the impugned order is not sustainable and is liable to be set aside.

Considering the submission of learned counsel for the Petitioner on perusal of record, it appears that there is a boundary dispute between the parties. When the Plaintiff claims that the Defendant has encroached upon some portion of the suit property, the Defendant denies same. It is also submitted that a report of the private Amin has already been admitted in evidence as Ext.11, which is available on record. It further appears that learned trial Court on perusal of the materials on record, observes that the evidence on record is sufficient to ascertain the identity of the property in dispute.

In view of the above, when learned trial Court in exercise of its discretion held that the evidence on record is sufficient for identification of the property and adjudication of the suit and the report of the private Amin is very much available on record, this Court does not feel it necessary to interfere with the impugned order.

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

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