The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Nov-2023 17:46:08 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.337 OF 2018 Santosh Kumar Biswal and others …. Mr. Samir Kumar Mishra, Senior Advocate being assisted by Mr. J. Pradhan, Advocate Petitioners Gadadhar Biswal and others …. Opp. Parties -versus-
Legal Reasoning
Mr. Dwarika Prasad Mohanty, Advocate (For Opposite Party Nos.1, 2 and 3) Order No. 08. 1. 2. CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 13.11.2023 This matter is taken up through hybrid mode. Order dated 21st February, 2018 (Annexure-4) passed by learned 1st Additional Senior Civil Judge, Balasore in Civil Suit No.85 of 2010-I is under challenge in this CMP, whereby an application filed by the Plaintiffs-Petitioners under Order XXVI Rule 9 CPC, has been rejected. 3. It is submitted by Mr. Mishra, learned Senior Advocate appearing for the Petitioners that the Plaintiffs are possessing the suit property by virtue of a partition deed dated 18th September, 1959. The suit has been filed for declaration of right, title, interest and for ancillary as well as consequential relief. The Defendant Nos. 1, 2 and 3 filed Written Statement stating that the suit land alleged to be in possession of the Plaintiffs is not identifiable. Thus, on the closure of the evidence, the Plaintiffs-Petitioners filed an application under Order XXVI Rule 9 CPC for deputation of a Survey Knowing Commissioner to correlate the major and Hal settlement map to identify the suit property. Learned trial Court, Page 1 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Nov-2023 17:46:08 // 2 // holding that the Defendant No.3 in his cross-examination at para 4 and 6 had stated that Sachindra and their successors are possessing their allotted land as per partition deed dated 18th September, 1959 and that there is no dispute in respect of the possession of the suit property over the suit land. Further, it is held that the suit is not for demarcation and there is no boundary dispute between the parties. It is also observed that there is no map attached to the partition deed through which the Plaintiffs claim title over the suit property. He, therefore, rejected the petition under Order XXVI Rule 9 CPC. 4. It is submitted by Mr. Mishra, learned Senior Advocate appearing for the Petitioners that in the written statement, the Defendants have categorically stated that the land possessed by the Plaintiffs is not identifiable. Thus, the land in possession of the Plaintiffs requires a measurement, which cannot be substantiated by adducing oral evidence. As such, a survey Knowing Commissioner is required to be deputed for measurement and identification of the suit property. This material aspect was not considered by learned trial Court while adjudicating the petition. Hence, the impugned order under Annexure-4 is not sustainable and is liable to be set aside. He further prays for a direction to learned trial Court to depute a Survey Knowing Commissioner for measurement and identification of the suit property. 5. Mr. Mohanty, learned counsel for the Opposite Party Nos. 1, 2 and 3 submits that the petition under Order XXVI Rule 9 CPC was filed after closure of the evidence to patch up the lacunae in case of the Plaintiffs. The Plaintiffs have appended the sketch map to the plaint highlighting the portion in their possession. Thus, the burden is on them to prove the same by adducing both oral and Page 2 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Nov-2023 17:46:08 // 3 // documentary evidence. At no stage of the trial, the Plaintiffs made any endeavour to adduce evidence with regard to the identification of the suit property. Thus, at a belated stage, when the suit was posted for argument, a petition under Order XXVI Rule 9 CPC is misconceived. There is no material on record to show that the Plaintiffs were incapable of measuring the suit land by a private Amin. He further submits that learned trial Court has dealt with the matter in its proper perspective and passed the impugned order which requires no interference. Hence, he prays for dismissal of the CMP. 6. Taking into consideration the submission made by learned counsel for the parties and on perusal of the record, it appears that the Plaintiffs in their plaint (Annexure-1) have appended the sketch map highlighting the portion in their possession. They have not adduced any evidence or made any endeavour to that effect for identification of the suit property at the time of adducing evidence on their behalf. 7. It is submitted by the Plaintiffs and is being observed by learned trial Court that the Defendant No.3 in his cross- examination, has categorically stated that the parties are possessing the suit property as per the registered partition deed dated 18th September, 1959. 8. If the Plaintiffs felt that further evidence with regard to the identification of the suit property was required to be adduced, an endeavour should have been made at the first instance on their behalf in that regard. In the instant case, admittedly, no endeavour has been made by the Plaintiffs to adduce any documentary or oral evidence through a private Amin. There is also no material on Page 3 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Nov-2023 17:46:08 // 4 // record to come to a conclusion that the Plaintiffs were not incapable of adducing evidence with regard to the identification of the suit property. 9. At present, the suit is posted for argument and if such a petition is entertained at this stage, it will certainly amount to procurement of evidence on behalf of the Plaintiffs by the Court, which is not permissible in law. Thus, I find no infirmity in the impugned order. 10. Accordingly, the CMP, being devoid of any merit, stands dismissed. Urgent certified copy of this order be granted on proper application. Rojalin (K.R. Mohapatra) Judge Page 4 of 4