Orissa High Court
Fakir Mohan Lenka vs Block Development Officer And .... Opp. ... on 3 January, 2024
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO. 1256 OF 2023
(An application under Article 227 of the Constitution
of India)
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Fakir Mohan Lenka .... Petitioner
-versus-
Block Development Officer and .... Opp. Parties
Successor-in-Office, Salipur Block and
others
Advocates appeared:
For Petitioner : Mr. Abinash Routray, Advocate
For Opp. Parties : Mr. Swayambhu Mishra,
Additional Standing Counsel
CORAM:
JUSTICE K.R. MOHAPATRA
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Heard and disposed of on 03.01.2024
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JUDGMENT
1. This matter is taken up through hybrid mode.
2. Order dated 11th July, 2023 (Annexure-6) passed by
learned Additional District Judge, Salipur in RFA No.97 of
2011 is under challenge in this CMP, whereby an application
filed by the Plaintiff No.1-Petitioner under Order XXVI Rule 9
C.P.C. has been rejected.
3. Mr. Routray, learned counsel for the Petitioner submits
that the suit has been filed for permanent and prohibitory
injunction. The Plaintiffs are the recorded tenants of Plot
CMP NO. 1256 OF 2023
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Nos.1389 and 1390. A pucca road was constructed adjacent to
the land of the Petitioner over Plot No.1396 encroaching upon
his land. Hence, the suit was filed for the aforesaid relief. The
suit being dismissed, the Petitioner preferred the appeal, which
is pending in the Court of learned Additional District Judge,
Salipur in RFA No. 97 of 2011. During pendency of the suit,
the Plaintiffs have adduced evidence in support of their case.
They also examined a private Amin to show that there is an
encroachment over the suit plot by the Government in
constructing a road. The said report was disbelieved on the
ground that it was not signed by the local people and boundary
tenants. In order to ascertain that there is an encroachment over
the suit property, an application under Order XXVI Rule 9
C.P.C. was filed before learned Appellate Court and the
impugned order under Annexure-6 has been passed. It is his
submission that an application under Order XXVI Rule 9 C.P.C.
is maintainable at the appellate stage in view of the ratio
decided in the case of Bishnu Charan Sahu -v- Paramananda
Sahu and others, reported in 1994 (I) OLR 205, wherein at
paragraph-6 it is held as under:
"6. A survey-knowing commissioner is deputed for
local investigation for the purpose of elucidating the
question as to whether the disputed land appertains
to a particular survey plot or plots. His report is
evidence in the case and forms part of the record.
Such evidence is usually collected during trial of a
suit In a given case if such evidence was essential but
has not been led during trial of the suit, and it is
sought to be led in appeal, it would be by way of
additional evidence. As to when either party to an
appeal is entitled to produce additional evidence, the
relevant provision is Order 41, Rule 27 of the Code.
CMP NO. 1256 OF 2023
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Under Clause 1(b) of the said rule the appellate
Court has power to allow additional evidence not
only if it requires such evidence to enable it to
pronounce judgment but also for any other
'substantial cause'. An appellate Court may be able
to pronounce judgment on the materials already on
record but may still consider additional evidence
necessary in the interest of justice to pronounce a
satisfactory judgment. In such a case paramount
consideration being ends of justice, admission of
additional evidence is for meeting a 'substantial
cause'. Further more if additional evidence sought to
be introduced in appeal has a direct bearing on the
main issue involved in the case, a party should
normally be permitted to adduce additional evidence
unless he is guilty of laches. If an appellate Court felt
that the evidence of survey-knowing commissioner
after local investigation, or opinion of a handwriting
expert after comparison, is required in the interest of
justice, there can be no legal impediment for
appellate Court to permit admission of additional
evidence and ultimately utilize the same for final
disposal of the appeal. But in such a case the
appellate Court has in compliance of Rule 28, to
retain the appeal and either to take such evidence
itself or direct the trial Court or even any other
subordinate Court to take such evidence and send it
to the appellate Court who can utilise the same while
finally disposing of the appeal.
3.1 He also relied upon the decision of this Court in the case
of Nakula Sahu -v- Suresh Chandra Beherdolai, reported in
2016 (I) OLR 624, which also reiterates the aforesaid ratio.
Learned Appellate Court rejected the petition only on the
ground that a Survey Knowing Commissioner should not be
deputed to collect the evidence for a party and discretion of the
Court can be exercised only when it finds difficulty in passing
an effective decree on the available evidence. It is also
erroneously held by learned Appellate Court that no such
CMP NO. 1256 OF 2023
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material was placed before the Court. Hence, prayer of the
Petitioner to depute a Survey Knowing Commissioner was not
entertained. It is his submission that a Survey Knowing
Commissioner can only clarify the dispute between the parties,
which is essentially a boundary dispute. This aspect was
completely brush aside by learned Appellate Court while
adjudicating the matter. Hence, he prays for setting aside the
impugned order under Annexure-6 and to direct learned
Appellate Court to depute a Survey Knowing Commissioner to
answer the questionnaire as per the Schedule in the petition
under Order XXVI Rule 9 C.P.C.
4. Mr. Mishra, learned Additional Standing Counsel
vehemently objects to the same. It is his submission that the
land was measured by the Tahasil Amin in presence of the
Plaintiff No.1-Petitioner and the report has been exhibited as
Ext.B-I. The Plaintiffs have also examined a private Amin on
their behalf, but he did not support their case as observed by
learned trial Court in the judgment passed in the suit. In order
to patch of the lacunae in their case, such an application has
been architectured by the Plaintiffs. Hence, learned Appellate
Court has rightly observed that process of the Court cannot be
used to procure evidence for a party.
4.1 Mr. Mishra, learned Additional Standing Counsel draws
attention of this Court to the following observation made by
learned trial Court in the judgment passed in the suit.
"D.W.2 is the sarpanch of the locality. During his
cross examination he has stated that on 13.5.2002,
the plaintiffs' plot No. 1389 and 1390 were
measured in his presence. Subsequently, Tahasil
CMP NO. 1256 OF 2023
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Amin had measured on 21.12.2008 during
pendency of the case and the report of the Tahasil
Amin is marked as Ext.B-I. During both these
measurement he was present. He has stated that
the demarcation is made on 13.5.2002 and
measurement made on 21.12.2008 gave the same
result and as per the measurement by Tahasil
Amin the concrete work has been done over the
Govt. road plot and no encroachment has been
made."
He, therefore, submits that when the witness examined on
behalf of the Plaintiffs did not support their case, deputation of a
Survey Knowing Commissioner at this stage will be a travesty
of law and will certainly prejudice the Defendants. Hence, he
prays for dismissal of CMP.
5. Considering the rival contentions of the parties and on
perusal of the record, it appears that the Petitioner filed petition
under Order XXVI Rule 9 C.P.C. with the following
questionnaire.
SCHEDULE
Points to be answered by the Civil Court Commissioner
1. Whether the Settlement/Consolidation
Authorities prepared the Map of Hal Plot Nos.
1394, 1395, 1389 and 1390 correctly as per the
entitlement of the owners of the said land ?
2. Whether the length of Hal Plot No.1394
from East to West has been enhanced to 150 Kadi
from 120 Kadi ?
3. Whether there is existence of "Bhagabata
Ghara" over Plot No. 1395 which is just adjacent
to the village road ?
4. Whether any portion of the land of the
Plaintiffs in Plot No.1389 and 1390 have been
included in Village road?
CMP NO. 1256 OF 2023
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6. There is nothing on record to suggest that the Plaintiffs
could not have adduced evidence before learned trial Court on
those issues/subject matter. Mr. Routray, learned counsel for
the Petitioner, however, submits that evidence has been adduced
on the aforesaid subject matter before learned trial Court, but it
was erroneously disbelieved/ignored by learned trial Court. If
that be so, learned Appellate Court can re-appreciate the
evidence available on record at the time of adjudication of the
appeal. Further, the land was measured by the Tahasil Amin in
presence of the parties. The report has also been exhibited as
Ext.B-I. The Plaintiffs have also examined a private Amin and
report along with map and field book etc. has been exhibited as
Exts. 7, 8, 9 and 10. When ample materials are available on
record to identify the land and to answer the questionnaire, as
quoted above, there is no necessity to further depute a Survey
Knowing Commissioner to answer the same. Wrong
appreciation of the materials on record by learned trail Court
cannot be a ground to depute a Survey Knowing Commissioner
at the appellate stage.
7. In that view of the matter, this Court is of the considered
opinion that learned Appellate Court has committed no error in
rejecting the petition under Order XXVI Rule 9 C.P.C. Hence,
the CMP being devoid of any merit stands dismissed.
Urgent certified copy of this judgment be granted on
proper application.
Signed by: BIJAY KUMAR SAHOO (K.R. Mohapatra)
bks Judge
Location: High Court of Orissa, Cuttack
Date: 04-Jan-2024 19:55:36
CMP NO. 1256 OF 2023
