Orissa High Court
Sudam Charan Mallik vs Surendra Barik And Others ... Opposite ... on 8 September, 2025
Author: B.P. Routray
Bench: B.P. Routray
Signature Not Verified
Digitally Signed
Signed by: MANAS KUMAR PANDA
Designation: Personal Assistant
Reason: Authentication
Location: OHC, Cuttack
Date: 09-Sep-2025 17:38:30
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.78 of 2025
(In the matter of an application under Article 227 of the Constitution of
India)
Sudam Charan Mallik .... Petitioner
-versus-
Surendra Barik and Others ... Opposite Parties
Advocate(s) appeared in this case:-
For Petitioner : Mr. A.P. Bose, Advocate
For Opp. Parties : Mr. K. Panda, Advocate
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
th
8 September, 2025
B.P. Routray, J.
1. Heard Mr. A.P. Bose, learned counsel for the Petitioner and
Mr. K. Panda, learned counsel for Opposite Party No.1.
2. Present CMP is directed against order dated 29th November,
2024 of learned Civil Judge (Junior Division), Nilgiri, Balasore passed
in CS No.62 of 2018, wherein the prayer of the Plaintiff to appoint
survey knowing commissioner under Order 26, Rule 9 C.P.C. has
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been refused mainly on the ground that the evidence in the suit has not
been commenced and the Plaintiff is at liberty to prove his contentions
by adducing documentary evidence.
3. Present Petitioner who is the Plaintiff before the learned trial
court in C.S. No.62 of 2018 has approached the civil court with
following prayers:
a) Let the decree be passed in favour of the plaintiff to declare
his right, title, interest over the suit schedule 'A' land.
b) Let the decree be passed in favor of the plaintiff to recover
the suit schedule 'A' land from the defendant no.1 through
process of court and to restore possession in favour of the
plaintiff.
c) Let the decree be passed in favour of the plaintiff to
demarcate the C.S. southern boundary line of C.S. plot
no.11.
d) Let, the decree for permanent injunction be passed in favour
of the plaintiff restraining the defendant no.1 to make new
construction and to change the present nature and character
of the suit schedule 'A' land.
e) Let, the decree be passed in favour of the plaintiff to get cost
of litigation from the defendant no.1.
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f) Let the decree be also passed in favour of the plaintiff to get
any other relief of the plaintiff to get any other relief which
he is entitled to get as per law of equity.
4. At the preliminary stage before adducing evidence, the Plaintiff
filed a petition dated 5th October, 2021 praying to appoint the survey
knowing commissioner in terms of provisions contained under Order
26 Rule 9 C.P.C. on the ground that since one of his prayer is with
regard to demarcation of southern boundary line of the suit land where
his plea is that the land measuring Ac.0.03 dec. in CS Plot No.11 have
been wrongly mapped in MS Plot No.30 and thus there is overlapping
of such extent of plot in respect of the lands of both parties, spot
verification at the initial stage would simplify the dispute.
5. It is true that no stage of appointment of survey knowing
commission has been prescribed under Order 26 Rule 9 C.P.C. The
provisions contained in said rule gives discretionary power to the
court to have the local investigation in the interest of justice whenever
it is necessary for the purpose. This court in the case of Bhabesh
Kumar Das v. Mohan Das Agrawal, 2015 (II) CLR 603, have
observed that when the Legislature in its wisdom has not prescribed
the stage of appointment of survey knowing commission, the power of
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court to appoint the survey knowing commission cannot be cabined,
cribbed or confined in that respect.
6. The Plaintiff in the instant case has specifically pleaded that the
land measuring Ac.0.03 dec. belonging to him in CS Plot No.11 has
wrongly been mapped into MS. Plot No.30 and therefore has sought
for indication of the same specifically in the relay map in order to
determine the question of amalgamation of the land to such extent into
Defendant's plot. Undoubtedly, the prayer of the Plaintiff as afore-
stated includes the prayer for demarcation of the southern boundary
line between the land of the Plaintiff and Defendant. It is no more res
integra that the party cannot use the court for collection of evidence in
his support by taking recourse to the provisions for appointment of
survey knowing commission or by spot verification. At the same time
it is also true the Court's duty is to adjudicate the dispute properly and
to take all necessary steps in that regard.
7. In Ram Prasad Mishra v. Dinabandhu Patri and Another,
2012 (Supp.-II) OLR 520, a Division Bench of this court have
observed as follows:-
"7. The party against whom, a report might have
given may choose an evidence in rebuttal. Therefore,
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further it is in the said case observed that ordinarily
in such type of case, local investigation should not
have been deferred after closure of the evidence.
Placing reliance on the said decision, having regard
to the pleading of the parties learned trial Judge is
right in allowing appointment of survey knowing
commissioner. The same should not have been
interfered with by the learned Single Judge applying
various decisions referred to supra and the decision
in 2006 (II) OLR 43 which decision has no
application to the fact situation."
8. It is seen from the impugned order in the case at hand that,
while deciding the prayer of the plaintiff for appointment of survey
knowing commission learned trial court has taken the suit as filed only
for the purpose of declaration of right, title, interest by holding that
there is no controversy relating to identification and measurement of
the suit land. But on the face of the prayer of the petitioner inter alia
for demarcation of the southern boundary line of CS Plot No.11 would
necessitates local investigation of the spot land because the
controversy in question relates to the identification and overlapping of
the land in question. Therefore the relay map in respect of the suit
schedule 'A' property with specification of Ac.0.03 dec. claimed to
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have been overlapped into the plot of the Defendant in MS Plot No.30
would have made the process of adjudication easier.
9. Further in Ramakanta Naik and Others v. Bhanja Delabehera,
2015 AIR CC 1724 (ORI), this Court have held that issuance of a
commission for local investigation is the discretion of the court and
while considering such prayer for appointment of the commission the
court must apply its mind to the facts and circumstances of the case,
and no straight jacket formula can be laid down for the purpose. But
before issuance of commission the court must be satisfied that there is
a prima facie case in favour of the applicant.
10. In the present case when the dispute is relating to overlapping
of such extent of land measuring Ac.0.03 dec. into MS Plot No.30 and
the Plaintiff has specifically prayed for demarcation of southern
boundary line of suit schedule 'A' land, the local investigation of the
spot land will be required to simplify the purpose of adjudication and
for the same it is not necessary that the parties would adduce their
evidence at the first instance.
11. Accordingly the CMP is allowed. The impugned order dated
29th November, 2024 under Annexure-1 is set aside. The prayer of the
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Plaintiff to appoint the survey knowing commission as per his petition
dated 5th October, 2021 (Annexure-4) is allowed.
( B.P. Routray)
Judge
M.K. Panda/P.A
