The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 197 OF 2022 (An application under Article 227 of the Constitution of India) Palia Dei and others * * * * -versus- …. Petitioners Sarat Beura @ Behera and others …. Opp. Parties Advocates appeared:
Legal Reasoning
For Petitioners : Mr. J. Bhuyan, Advocate For Opp. Parties : Mr. Susanta Kumar Dash, Advocate (For Opp. Party Nos.1 to 7) CORAM:
Decision
JUSTICE K.R. MOHAPATRA ---------------------------------------- Heard and disposed of on 02.04.2024 --------------------------------------- JUDGMENT 1. This matter is taken up through hybrid mode. 2. Mr. Bhuyan, learned counsel submits that the Petitioner No.1, namely, Palia Dei, died on 30th March, 2022 leaving behind her legal heirs, who are already on record as Petitioner Nos.2 to 4 in this CMP. Hence, a memo at Flag-K has been filed to delete her name from the record. 3. Considering the submission of Mr. Bhuyan, learned counsel for the Petitioners and in view of the memo filed (Flag- K), the name of Petitioner No.1 is deleted from the cause title of the CMP. CMP NO. 116 OF 2024 Page 1 of 5 // 2 // 4. Though I.A. No.648 of 2022 for vacation of the interim order dated 10th March, 2022 passed in I.A. No.227 of 2022 and I.A. No.1494 of 2023 for extension of the said interim order are listed today respectively, but, in course of hearing of the said interim applications, it is felt that merit of the case has to be gone into. Hence, on consent of learned counsel for the parties, the CMP is taken up for final disposal. Order dated 17th December, 2021 (Annexure-5) passed 5. by learned 2nd Additional Senior Civil Judge, Cuttack in C.S. No.685 of 2008 is under challenge in this CMP, whereby an application filed by the Plaintiffs for deputation of a Survey Knowing Commissioner has been rejected. 6. Mr. Bhuyan, learned counsel for the Petitioners submits that the suit has been filed by the Plaintiffs-Petitioners for declaration of right, title and interest as well as for a declaration that the sale deed executed by Defendant Nos.1 to 7 in favour of Defendant No.8 is illegal and not valid. They also prayed for other consequential relief. At the closure of the evidence of the parties, an application under Order XXVI Rule 9 C.P.C. was filed by the Plaintiffs-Petitioners for deputation of a Survey Knowing Commissioner to answer the question “whether the suit land is surrounded by a compound wall?” 6.1. Necessity for deputation of a Survey Knowing Commissioner arose when Defendant No.8 in his evidence specifically stated that after purchase of the suit land from Defendant Nos.1 to 7, he was delivered with possession. He has also constructed a compound wall around the suit property. Hence, it was necessary to find out as to whether there exists any Page 2 of 5 CMP NO. 116 OF 2024 // 3 // boundary wall around the suit property or not. Since the Defendant No.8 has come to the Court with a specific stand that after purchase of the suit property, he constructed a boundary wall surrounding the suit property, the existence of the boundary wall, if any, carries importance in deciding the possession of Defendant No.8 over the suit property. Learned trial Court without considering the same proceeded with the matter with an impression that the suit can be adjudicated on the basis of the evidence and documents available on the case record. Hence, it was opined that deputation of a Survey Knowing Commissioner was not required for demarcation of the suit land and to answer the question in the petition under Order XXVI Rule 9 CPC. He, therefore, prays for setting aside the impugned order under Annexure-5 and to direct deputation of a Survey Knowing Commissioner to ascertain the issue as to whether there is existence of any compound wall around the suit property or not. 7. Mr. Dash, learned counsel for Opposite Party Nos.1 to 7 vehemently objects to the same and submits that the suit land was recorded in the name of Defendant Nos.1 to 7. On verification of the land records, the Defendant No.8 purchased the suit property and was delivered with possession. The Defendant No.8 essentially claims title over the suit property through Defendant Nos.1 to 7. The Defendant Nos.1 to 7 in their written statement have categorically stated that the gift deed was executed in respect of undivided interest in the suit property belonging to the Hindu undivided family governed by Mitakshara School of Hindu Law without taking consent of all the co-sharers. Hence, the gift deed itself is void. If the Page 3 of 5 CMP NO. 116 OF 2024 // 4 // Defendant Nos.1 to 7 will be successful in establishing that the gift deed executed in favour of the Plaintiffs-Petitioners was in respect of undivided interest of the joint family, then the gift deed would enure to the benefit of the Plaintiffs-Petitioners. On the other hand, if the Plaintiffs-Petitioners establish their case, they will be successful in the suit. Thus, deputation of a Survey Knowing Commissioner for ascertaining the issue as to whether a boundary wall surrounding the suit property is existing or not, will not be required. He, therefore, submits that learned trial Court has rightly observed that the evidence and documents available on record are sufficient to decide the issue involved in the suit. He, therefore, prays for dismissal of the CMP. 8. Taking into consideration the submissions made by learned counsel for the parties and on perusal of the record, it appears that the Plaintiffs claim right, title and interest over the suit land on the basis of a gift deed. The Defendant Nos.1 to 7 claim right, title and interest over the suit property on the basis of the R.O.R. recorded in their name. It is also not disputed that the Defendant Nos.1 to 7 have alienated the suit property to Defendant No.8 by executing a registered sale deed. The Defendant No.8 might have stated in his evidence that after purchase, he was delivered with possession and has constructed a compound wall around the suit property. Since identification of the suit property is not in question, existence of a boundary wall around the suit property is of no relevance for adjudication of the suit. The Plaintiffs have to establish that they have right, title and interest over the suit property by virtue of the gift deed executed in their favour. On the other hand, burden is on the Page 4 of 5 CMP NO. 116 OF 2024 // 5 // Defendant Nos.1 to 7 to prove their right, title and interest over the suit property and they have alienable right over the same. Burden is on the Defendant No.8 to prove that he has acquired right, title and interest over the suit property by virtue of the sale deed executed by Defendant Nos.1 to 7. 9. In view of the above, this Court feels that demarcation of the suit property or deputation of a Survey Knowing Commissioner to ascertain as to whether a compound wall around the suit property exists or not, is not required for just adjudication of the dispute involved in the suit. Hence, I find no infirmity in the impugned order. 10. Accordingly, the CMP being devoid of any merit stands dismissed. 11. Interim order dated 10th March, 2022 passed in I.A. No. 227 of 2022 stands vacated. Urgent certified copy of this order be granted on proper application. (K.R. Mohapatra) Judge Orissa High Court, Cuttack Dated the 2nd April, 2024/bks Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Apr-2024 19:28:37 CMP NO. 116 OF 2024 Page 5 of 5