Baijayanti Pradhan vs Biswanath Gauda
2023 Latest Caselaw 14999 Ori

Signature Not Verified
Digitally Signed
Signed by: ROJALIN NAYAK
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 21-Nov-2023 10:32:56




                               IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                   CMP NO.1307 OF 2023
                                   Baijayanti Pradhan                  ....                  Petitioner
                                                                     Mr. Bibekananda Bhuyan, Advocate

                                                                 -versus-
                                   Biswanath Gauda                               ....       Opp. Party

                                                CORAM:
                                                JUSTICE K.R. MOHAPATRA
                                                        ORDER

              Order No.                                20.11.2023

               01.            1.          This matter is taken up through hybrid mode.

2. Order dated 3rd October, 2023 (Annexure-7) passed by learned Additional District Judge, Baliguda in RFA No.24 of 2019 is under challenge in this CMP, whereby an application filed by the Defendant-Appellant under Order XXVI Rule 9 CPC, has been rejected.

3. Mr. Bhuyan, learned counsel for the Petitioner submits that the suit has been filed by the Plaintiff-Opposite Party for declaration of right, title, interest in respect of the suit land, recovery of possession and for permanent injunction. It is the case of the Plaintiff that he has purchased the property from Pankaj Majhi, the power of attorney holder of Md. Aman. After purchase, the land was mutated in his name in Plot No.157/1235 under Khata NBo.126/63 to an extent of Hc.0.020 r. The Defendant has also purchased a piece of land from the recorded owner Mukunda Kahar. It is alleged by the Plaintiff that when the Defendant tried to make construction of a pucca house encroaching upon the suit land, the suit was filed. Learned trial Court decreed the suit vide judgment dated 15th November, 2019. Assailing the same, the

Signature Not Verified Digitally Signed // 2 // Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 21-Nov-2023 10:32:56

Petitioner-Defendant has filed RFA No.24 of 2019, which is pending in the Court of learned Additional District Judge, Baliguda. During pendency of the appeal, the Appellant-Petitioner filed an application under Order XXVI Rule 9 CPC for deputing a Survey Knowing Commissioner to identify the alleged encroached area.

4. It is submitted by Mr. Bhuyan, learned counsel for the Petitioner that deputation of a Survey Knowing Commissioner is necessary for better appreciation of the evidence on record. It is his submission that although no application of such nature was filed before learned trial Court, there is no legal bar to maintain an application under Order XXVI Rule 9 CPC at the appellate stage. It is his submission that learned appellate Court, being swayed away by the evidence available on record, rejected the petition. Hence, this CMP has been filed.

5. It is further submitted that although a demarcation of the suit property purchased by the Plaintiff-Opposite Party has been made, but the same was done as per the mutation record, which neither creates nor extinguishes the right of the parties. In order to ascertain the area purchased by the Defendant-Petitioner and for better appreciation of the materials on record, deputation of a Survey Knowing Commissioner is essential. Hence, learned appellate Court has committed an error in rejecting the same. Accordingly, he prays for setting aside the order under Annexure-7 and direct learned appellate Court to depute a Survey Knowing Commissioner to identify the property (land) purchased by the Defendant-Petitioner.

 Signature Not Verified
Digitally Signed                                                   // 3 //
Signed by: ROJALIN NAYAK
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 21-Nov-2023 10:32:56

6. Considering the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that the Plaintiff-Opposite Party was examined as P.W.1 and he has given proper description of the property he has purchased including the boundary of the suit land. The Petitioner was examined as D.W.1. She admitted in her evidence that she had purchased Plot No.157/1235 and the Plaintiff has purchased Plot No.157/1229. She has also placed on record the RSD No.17 dated 17th July, 2003 (Exhibit-B) through which, she purchased the property.

7. It also reveals that demarcation of the suit land has been done by the Amin and his report has been marked as Exhibits-6 and

7. Thus, there is sufficient material on record to identify the suit property. However, the Plaintiff alleges that the Defendant encroaching upon his purchased land, is trying to make a construction over the same. The burden is on him to prove the same.

8. Although an application under Order XXVI Rule 9 CPC is maintainable at the appellate stage, but it appears that no such application was ever filed before learned trial Court. It further appears from the judgment passed in Title Suit (Annexure-3) that the suit property is identifiable.

9. In that view of the matter, entertaining an application under Order XXVI Rule 9 CPC will only amount to feasing out evidence on behalf of the Defendant-Appellant (Petitioner herein). As such, learned appellate Court has committed no error in rejecting such application.

 Signature Not Verified
Digitally Signed                                                // 4 //
Signed by: ROJALIN NAYAK
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 21-Nov-2023 10:32:56

10. It also appears that learned appellate Court has taken the pain to discuss the materials on record including the evidence to show that the materials on record are sufficient for elucidating the matter in dispute.

11. Hence, this CMP, being devoid of any merit, stands dismissed.

Urgent certified copy of this order be granted on proper application.

(K.R. Mohapatra) Judge

Rojalin