Sirapani Mahanta & Another vs Kanchan Mohapatra & Others ...... Opp. ...
2026 Latest Caselaw 97 Ori

Citation : 2026 Latest Caselaw 97 Ori
Judgement Date : 7 January, 2026

[Cites 3, Cited by 0]

Orissa High Court

Sirapani Mahanta & Another vs Kanchan Mohapatra & Others ...... Opp. ... on 7 January, 2026

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

           IN THE HIGH COURT OF ORISSA AT CUTTACK
                      C.M.P. No.891 of 2024

    (An application under Article 227 of the Constitution of India)


      Sirapani Mahanta & Another             ......     Petitioners

                                  -Versus-

      Kanchan Mohapatra & Others             ......     Opp. Parties
      Advocate(s) appeared in this case :-

      _______________________________________________________
        For Petitioners           : Mr. S. Mishra, Advocate
                                    Mr. Omkar Panda, Advocate


         For Opp. Parties         : Mr. G. Mukherji, Sr. Advocate
                                    with Mr. A. Mishra, Advocate
      _______________________________________________________
      CORAM:
           JUSTICE SASHIKANTA MISHRA
                            JUDGMENT

th 7 January, 2026

SASHIKANTA MISHRA, J.

This writ application has been filed by

defendant Nos.1 and 2 in C.S. No.15 of 2023 pending in

the Court of learned Senior Civil Judge, Champua. They

seek to challenge the order dated 24.06.2024 passed by

the Court below in allowing an application of the

plaintiffs for appointment of Civil Court Commissioner

under the provisions of Order XXVI Rule 9 of CPC.

2. Briefly stated, the facts of the case are that the

plaintiffs have filed the suit inter alia, alleging that the

defendant Nos.1 and 2 have encroached upon a portion

of Plot No.129 (Schedule-B), which actually belongs to

them and defendant No.4. As such, the suit has been

filed for declaration of title of the plaintiffs and

defendant No.4 and for confirmation of possession; in

the alternative, for recovery of possession. The relief of

permanent injunction has also been claimed. The

defendant Nos.1 and 2 are contesting the suit inter alia,

taking the stand that they have not encroached upon

any portion of the suit land as alleged by the plaintiffs.

3. It is borne out from the record that an

application, being I.A. No.7 of 2023 was filed by the

plaintiffs seeking an order of temporary injunction. By

order dated 25.07.2023, the application was rejected

and was subsequently confirmed in appeal by the

learned Additional District Judge, Champua in F.A.O.

No.4 of 2023, vide order dated 22.11.2023. The

plaintiffs thereafter, filed an application under Order

XXVI Rule 9 for a direction to depute a Civil Court

Commissioner to measure the plot with the intent of

finding out the status of possession in respect of the

suit property by defendant Nos.1 and 2. A questionnaire

was appended to the petition. Defendant Nos.1 and 2

filed an objection stating therein that their father had

constructed a house having purchased the property

from one Mewalal Jaiswal. The husband of the plaintiff

No.1 purchased the land from said Mewalal Jaiswal and

constructed a house in the year 2009. There was no

allegation of any encroachment being made at that point

of time. It is also stated that both houses are adjacent to

each other. By the order impugned, the Court below

allowed the petition.

4. Heard Mr. S. Mishra, learned counsel with Mr.

Omkar Panda, learned counsel for the Defendant-

Petitioners and Mr. G. Mukherji, learned Senior Counsel

with Mr. A. Mishra, learned counsel for the Plaintiffs-

Opposite Parties.

5. Mr. Panda would submit that allowing the

application filed by the plaintiffs under Order XXVI Rule

9 amounts to granting liberty to the plaintiffs to acquire

further evidence in their favour, which is not

permissible. He further submits that given the facts

alleged by the plaintiffs and the denial thereof by the

defendants in their written statement, there is no need

for measuring the suit land by a Survey-Knowing

Commissioner.

6. Per contra, Mr. Mukherji, learned Senior

counsel would submit that the whole case of the

plaintiffs rests upon the allegation of encroachment of a

portion of the suit property by defendant Nos.1 and 2,

who have started construction of their building much

after construction of the building by the plaintiffs. He

further submits that it being basically a boundary

dispute, the same can be easily resolved by deputing the

Survey-Knowing Commissioner to the field. Mr.

Mukherji further submits that pursuant to the

impugned order the Civil Court Commissioner has

already visited the spot, made necessary measurements

and has submitted his report to the Court, which is kept

in a sealed cover because of the operation of interim

order passed by this Court.

7. From a reading of the plaint and the written

statement, copies of which are enclosed to the writ

application, there can be no doubt that the basic

dispute between the parties centers around the so-

called possession by defendant Nos.1 and 2 over a

portion of Plot No.129, which the plaintiffs claim to be

exclusively belonging to them. The defendants have

denied such allegation. A rough sketch map has also

been appended to the plaint.

8. This Court is of the view that it is precisely for

such disputes that the provision of Order XXVI Rule 9

can be profitably used. For immediate reference, the

provision is reproduced below:-

"9. Commission to make local investigations- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such

person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."

9. It is also trite law that where the controversy is

as to identification, location or measurement of the land

or premises, local investigation is necessary, essential,

requisite and proper. The above view was taken by the

Supreme Court in the case of Haryana Waqf Board v.

Shanti Sarup1.

10. Reading of the impugned order shows that the

trial Court has taken note of all relevant facts and the

position of law in the proper perspective before allowing

the petition in question. From what has been narrated

before, this Court is of the considered view that the trial

Court rightly exercised the power under Order XXVI