Orissa High Court
Rajendra Prasad Pradhan vs Dr. N.Kishore Patnaik And Others on 14 September, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. No. 25 of 2022
Rajendra Prasad Pradhan ..... Petitioner
Mr. Soumya Mishra, Advocate
-versus-
Dr. N.Kishore Patnaik and others .... Opp. Parties
Mr. Sidharth Prasad Das, Advocate
(For Opposite Party No.1)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 14.09.2022
6. 1. This matter is taken up through Hybrid mode.
2. Petitioner in this CMP seeks to assail the order dated 18th
December, 2021 (Annexure-9) passed by learned Senior Civil
Judge (LR & LTV), Berhampur in CS No.1 of 2018, whereby he
allowed an application filed by Plaintiff/Opposite Party No.1
under Order XXVI Rule 9 CPC.
3. Mr. Mishra, learned counsel for the Petitioner submits
that the suit has been filed for declaration that Plaintiff/Opposite
Party No.1 has acquired title over the suit land by adverse
possession and for consequential relief. Before commencement
of trial, he filed an application under Order XXVI Rule 9 CPC to
depute a Survey knowing Commissioner for identification and
location of the suit plot. In the petition, it is contended that
Defendants by encroaching upon the land occupied by the
Plaintiff-Opposite Party No.1 has constructed a boundary wall.
Since the matter involves boundary dispute, Plaintiff/Opposite
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Party No.1 contended that a Survey knowing Commissioner
should be deputed to demarcate the land and submit its report,
which can be taken into consideration along with other materials
that will come up in the trial.
4. He further submits that law is well-settled in the matter of
deputation/appointment of a Survey knowing Commissioner. A
Survey knowing Commissioner is deputed for elucidation of a
matter in dispute, but all matters in dispute should not be
elucidated by appointing a Survey knowing Commissioner. The
parties seeking deputation of a Commissioner must, at the first
instance, should produce material to prove his case. In the event,
the material is insufficient or the party is not capable of
producing material for proper identification / elucidation of the
dispute then the Court may consider appointment of a Survey
knowing Commissioner. In support of his case, he placed
reliance on judgment of this Court in the case of Santosh Kumar
Parida Vs. Narayan Chandra Dash and others, reported in
2020 (II) ILR-CUT-629, wherein it is held as under :-
"5.1Thus, from the reading of the provision it is
manifest that if a matter in dispute in a suit needs any
clarification or further explanation, the Court may
consider issuance of a commission for that purpose.
The language employed in the provision makes it
abundantly clear that the Court exercises its judicial
discretion while making order for issuance of a
commission. But, it must be kept in mind that all
matters in dispute in a suit cannot be elucidated
through issuance of a commission. Thus, the party
seeking issuance of a Commission must establish a
prima facie case to invoke the provision. He cannot
use the Court to collect evidence on his behalf in the
guise of invoking the power of the court under the
provision, unless the occasion so arises. Thus, the
party to the suit seeking issuance of a commission
must, at the first instance, make an endeavour to lead
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evidence to prove his case on the issue involved. Only
when the evidence or material on record is
insufficient or needs clarification or the parties are
unable to lead evidence on any particular matter in
dispute or it becomes expedient to make a local
investigation by a Commission to lead further
evidence in the matter, to pass an effective decree,
then the Court has the power to exercise its
discretion under the provision and issue such a
commission for any purpose mentioned in the
provision itself."
Learned Civil Judge, without applying its judicial mind either to the
provisions of law or facts and circumstances of the case, allowed the
application mechanically. Hence, he prays for setting aside of the
impugned order.
5. Mr. Das, learned counsel for the Plaintiff/Opposite Party
No.1 vehemently objected to the above submission. It is his contention
that there is ample material on record to show that the
Petitioner/Defendants have encroached upon the suit land and
constructed boundary wall, but for identification of the exact location
of the same, deputation of a Survey knowing Commissioner is
necessary. It is his submission that when there is a boundary dispute
between the parties, learned trial Court without wasting judicial time
should resort to the provision under Order XXVI Rule 9 CPC for
deputation /appointment of a Commissioner. He placed reliance upon
an order of this Court dated 22nd December, 2020 passed in CMP
No.334 of 2020, wherein this Court relying upon the ratio in the case
of Santosh Kumar Parida (supra), opined that when learned trial
Court has held that there is a boundary dispute between the parties,
demarcation of the land in question is necessary to elucidate the matter
in dispute. Thus, learned trial Court has committed no error in
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deputing Survey knowing Commissioner even at pre-trial stage. He,
therefore, prays for dismissal of the CMP.
6. Upon hearing learned counsel for the parties and on perusal
of record including the case laws cited, it is clear that trial of the suit
has not yet commenced. In a suit for declaration of right and title by
prescription, the Plaintiff has to establish that he is in possession over
the suit land. Thus, burden of proof is on the Plaintiff/Opposite Party
No.1 in the facts and circumstances to prove that he is in possession
over the suit land. In view of the ratio decided in Santosh Kumar
Parida (supra), it is clear that the party seeking issuance of
Commission must establish prima facie, case of invocation of such
provision. He cannot use the Court to collect evidence on his behalf.
He cannot use the power of the Court under the provisions unless
occasion so arises. In the instant case, no such endeavour has yet been
made by the Plaintiff/Opposite Party No.1 to show prima facie case in
his favour, as the trial of the suit has not yet commenced. There is also
no material on record to come to the conclusion that Plaintiff/Opposite
Party No.1 is prevented by sufficient cause to enter upon to measure
the land in question. In that view of the matter, the impugned order
directing deputation of a Survey knowing Commission is premature
and is not sustainable. In view of the above, the impugned order under
Annexure-9 is set aside.
7. Accordingly, the CMP is allowed to the aforesaid extent.
8. Interim order dated 1st August, 2022 passed in IA No.31 of
2022 stands vacated.
Issue urgent certified copy of the order on proper application.
(K.R. Mohapatra)
Judge
s.s.satapathy
