[Cites 2, Cited by 0]
Orissa High Court
Prakash Chandra Ghadei And vs Rabinarayan Acharya And Others ... ... on 29 November, 2025
Author: B.P. Routray
Bench: B.P. Routray
Signature Not Verified
Digitally Signed
Signed by: MANAS KUMAR PANDA
Reason: Authentication
Location: OHC, Cuttack
Date: 01-Dec-2025 13:07:14
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.1402 of 2025
(In the matter of an application under Article 227 of the Constitution of
India)
Prakash Chandra Ghadei and .... Petitioners
Others
-versus-
Rabinarayan Acharya and Others ... Opposite Parties
Advocate(s) appeared in this case:-
For Petitioners : Mr. S.S. Bhuyan, Advocate
For Opp. Parties : Mr. B.P. Sarangi, Advocate
For O.P. Nos.1 and 3 to 5
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
th
29 November, 2025
B.P. Routray, J.
1. Heard Mr. S.S. Bhuyan, learned counsel for the Petitioners
and Mr. B.P. Sarangi, learned counsel for Opposite Parties 1 and 3
to 5.
2. It is stated that opposite party no.2 died in the meantime who
is one of the petitioners in CMA No.157 of 2023. It is also
submitted that since other petitioners in said CMA have been duly
represented before this court as opposite parties 1 and 3 to 6, and
till date no step for substitution has been taken in the CMA before
the executing court, present CMP can be disposed of considering
representation of LRs of opposite party no.2 through other
opposite parties.
3. Present CMP is directed against order dated 12th May, 2025 of
learned Civil Judge (Senior Division), 2nd Court, Cuttack passed in
CMA No.157 of 2023 (arising out of Execution Case No.19 of
2015), wherein the prayer of the petitioners in the CMA under
Order 26 Rule 9 C.P.C. has been allowed.
4. Present petitioners being the DHrs in respect of decree dated
13th August, 2014 wherein the JDr No.1 was directed to vacate suit
schedule B land appertaining area Ac.0.03 dec. and defendants 2
and 3 (JDr No.2 and 3) were directed to vacate the encroached are
of Ac.0.01 dec. with such description of the decreed land. During
pendency of the execution proceeding present opposite parties
filed CMA No.157 of 2023 as per Rule 97 of Order 21 raising
their objection against their dispossession. The cause shown by
these 3rd parties who filed CMA No.157 of 2023 is that the
original plaintiff being the land owner exchanged the suit land for
use of road by all such purchasers of neighbouring lands owned by
those 3rd party petitioners in the CMA. Pending adjudication of the
claim against dispossession, a petition under Order 26 Rule 9
C.P.C. was filed by these 3rd parties for measurement of the land
along with plot No.3374/4929 in mutation Khata No.1135/923 of
Mouza Pubakhanda for proper identification and topography of the
same.
5. The DHr objects said prayer on the ground that direction of the
executing court to measure plot No.3374/4929 is beyond the scope
of decree as the decree is in respect of suit schedule B and C lands,
i.e. plot No.3374 and 3374/4658.
6. On the other hand it is submitted by present opposite parties
that plot no.3374/4929 being exchanged to be used as part of the
road in terms of schedule B and C land, it is incorrect to say that
measurement of said plot would be beyond the scope of the
decree.
7. Admittedly, the suit land under schedule B and C of the plaint
is a part of suit schedule 'A' land being used for the purpose of
road and as per the allegations the same was encroached by the
defendants. Since present opposite parties who are the petitioners
in CMA No.157 of 2023 have raised their claim against their
dispossession from the suit land on the ground that the suit land
was also used by them as road along with plot No.3374/4929, it is
necessary to get measurement of all the lands that are used for the
purpose of road by the DHr as well as by the opposite parties. The
map appended to the plaint in this respect has been relied on by the
opposite parties to justify such contention that plot No.3374/4929
presently forms a part of the road and part of schedule A property.
8. It is well known that scope of Rule 9 under Order 26
authorizes the court to exercise its discretion by local investigation
in order to overcome the difficulty for elucidating the subject in
dispute by measuring the disputed property through local
investigation when it is found necessary. Usually when the dispute
is with regard to demarcation of land or there is a boundary
dispute, particularly when the evidence or material on record is
insufficient or needs clarification, survey knowing commissioner
may be appointed. At the same time it is also true that the power
under Rule 9 of Order 26 cannot be used in order to collect
evidences for the parties.
9. It is seen from the present dispute that, the DHr has got the
decree in his favour in respect of suit schedule B and C lands
measuring Ac.0.04 dec. for use of the same which forms part of
suit schedule A property. According to present opposite parties,
who have raised their claim against dispossession, that, the land in
Plot No.3374/4929 which also forms part of suit schedule 'A'
property and has been exchanged to be used as a road along with
suit schedule B and C property by the DHr as well as by other 3 rd
party petitioners. Therefore, keeping in view the nature of dispute
raised in CMA No.157 of 2023 and the scope of decree dated 13th
August, 2014, no impropriety is seen in the order of the learned
trial court by allowing the prayer of the opposite parties to
measure the suit schedule B and C lands along with plot
No.3374/4929. It is because that according to the 3rd party
petitioners in CMA No.157 of 2023 said plot also forms part of the
road to be used by the HDr and all other neighbouring land
owners. Thus it cannot be said that by directing measurement of
Plot No.3374/4929 along with suit schedule B and C lands the
learned Executing court has travelled behind the decree since the
claim of the petitioners in CMA No.157 of 2023 is to the effect
that Plot No.3374/4929 also forms part of the road being used by
all such parties.
10. In the result the CMP is dismissed.
11. It is made clear that any such discussion or finding made in the
present order shall not influence the merits of the claim of the
DHr, JDr and others concerned, in the execution case as well as in
the CMA.
( B.P. Routray)
Judge
M.K. Panda/P.A
