Orissa High Court
Nakula Nag vs Suresh Sarbhanjia And Others on 19 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 1525 OF 2014
Nakula Nag .... Petitioner
Mr. Sanjeev Udgata, Advocate
-versus-
Suresh Sarbhanjia and others .... Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 19.01.2023
3. 1. This matter is taken up through hybrid mode.
2. Order dated 25th October, 2014 (Annexure-4) passed by
learned Civil Judge (Senior Division), Balangir in T.S. No.106 of
2000 is under challenge in this CMP, whereby an application filed
under Order XXVI Rule 9 C.P.C., has been rejected.
3. It is submitted by Mr. Udgata, learned counsel for the
Petitioner that T.S. No.106 of 2000 has been filed for right, title
and interest and perpetual injunction as well as for confirmation
of possession. Initially, the suit was dismissed. Assailing the
same, the Plaintiff-Petitioner preferred R.F.A. No.39/47 of 2003-
05, which was allowed vide judgment dated 31st July, 2009
remitting the matter to learned trial Court for fresh adjudication
with certain observation and direction and framing additional
issues. While disposing of the appeal, learned appellate Court
observed as under:
".........Thirdly, if the area of the suit land as shown in
those two maps attached with Exts.1 and 2 will be taken
together, then it is not known as to whether the same will
reflect the red colour area marked as 'A' out of suit Hal
Plot No.1065 as shown in the map appended to the plaint.
// 2 //
So on a careful consideration of the description made in
the plaint regarding the schedule of land and so also the
description in Exts.1 and 2 and the map attached
therewith it reveals that the map as well as schedule of
land are not correctly reflected in the plaint. It needs
amendment of the plaint schedule and so also the map
attached to the plaint. Unless the suit schedule area is
identifiable, no effective decree can be passed in the
present suit."
4. Accordingly, the Petitioner amended the plaint. The
Defendants-Opposite Parties filed additional written statement
stating that description of the property in the schedule of the
amended plaint is not clear and it is ambiguous. In that view of
the matter, the Plaintiff after examining three witnesses filed an
application under Order XXVI Rule 9 C.P.C. for deputation of a
Survey Knowing Commission for identification of the suit
property. Learned trial Court holding that the suit does not
involve a boundary dispute and the sale deed as well as
documents relating to description of the land have already been
exhibited, rejected the petition stating that deputation of a Survey
Knowing Commission is not necessary. Hence, this CMP has
been filed.
5. Mr. Udgata, learned counsel for the Petitioner submits that
as there is serious dispute with regard to identification of the
property, a Survey Knowing Commissioner should be deputed to
elucidate the matter in dispute. Unless the description of the
property is clarified, no effective decree can be passed. Hence, he
prays for setting aside the impugned order under Annexure-4 and
to allow the petition filed by the Plaintiff-Petitioner under Order
XXVI Rule 9 C.P.C..
6. Although notice is sufficient on the Defendants-Opposite
Party Nos.1 and 2, none appears on behalf of them.
// 3 //
7. On perusal of the record, it appears that the Petitioner in
order to describe the identity of the suit land, has exhibited the
sale deed as well as the report of the private Amin, which contain
the description of the property. Burden is on Plaintiff-Petitioner to
prove its case. It should not utilize the Court to collect evidence
on his behalf. As it appears that the Plaintiff-Petitioner has
examined witnesses in support of his case and exhibited
documents providing description of the property. The
Defendants, however, in their additional written statement have
pleaded that the description of the property in the schedule of the
plaint is ambiguous. Until the Defendants-Opposite Parties lead
evidence in support of their case, consideration of a petition for
deputation of a Survey Knowing Commissioner will be
premature.
8. In view of the above, this Court without interfering with
the impugned order, disposes of the CMP with an observation that
if at all necessary, the Plaintiff-Petitioner may move learned trial
Court for deputation of a Survey Knowing Commissioner after
closure of the evidence from the parties and in that event, the
same shall be considered on its own merit.
9. Interim order dated 16th December, 2014 passed in Misc.
Case No.1438 of 2014 stands vacated.
9. Since the suit is of the year, 2000, all endeavour should be
made for early disposal of the same.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
ms Judge
