The appointment of a Commissioner for local investigation under Order 26 Rule 9 C.P.C. is necessary only when the controversy is as to identification, location, or measurement of the land or premise or object.

JUDGMENT :

A.K. Rath, J.

This petition challenges the order dated 25.4.2016 passed by the learned Civil Judge (Senior Division), Kantabanji in C.S. No. 103/100 of 2012-13, whereby and whereunder, the learned trial court rejected the application of the defendants under Order 26 Rule 9 C.P.C. for deputation of a Commission for local inspection.

2. The opposite party as plaintiff instituted the suit for declaration of title and recovery of possession impleading the petitioners as defendants. The case of the plaintiff is that originally the suit property belonged to one Suban Majhi. He alienated the land to Gopichand Sahu by means of a Registered Sale Deed No.963/1959 on 25.8.1959. In the hal settlement, name of Ramachandra Sahu was recorded. While the matter stood thus, Ramachandra Sahu alienated the said land to one Lingaraj Mishra on 25.12.1967. Since the dispute arose, Lingaraj Mishra instituted T.S.No.26 of 1983 in the court of the learned Munsif, Titilagarh for declaration of title and confirmation of possession. The suit was decreed. Thereafter Ramachandra Sahu filed T.S.No.111/10 of 86-91 assailing the judgment and decree on the ground of fraud. The suit was withdrawn. After death of Lingaraj Mishra, his legal heirs became owner in possession of the land. On 4.5.2011, the legal heirs of Lingaraj Mishra alienated the land in favour of the plaintiff by means of a Registered Sale Deed. Taking advantage of absence of the plaintiff, the defendants removed fence of the suit land and started construction. The plaintiff protested the same, but the defendants did not pay any heed. The defendants assured the plaintiff to vacate the suit land after demarcation. On 9.9.2012, the Amin demarcated the land in presence of both the parties, but the defendants refused to sign on the map prepared by the Amin.

3. Pursuant to issuance of notice, the defendants entered appearance and filed written statement. The case of the defendants is that the suit land along with other land originally belonged to one Jagannath Majhi. Jagannath Majhi sold plot nos.263 and 903 to Chakradhar Meher, the grandfather of the defendants in the year 1958 for a consideration of Rs.80/-, which was an oral sale. At the relevant point of time, the suit land was vacant. After purchase, Chakradhar Meher constructed the house and compound wall. In the compound wall, the suit land situates. Since 1958 Chakradhar Meher and his family members are in possession of the said land peacefully and continuously with the hostile animus to the real owner. It is stated that the defendants have planted trees adjacent to the boundary wall. While the matter stood thus, the defendants filed an application under Order 26 Rule 9 C.P.C. for deputation of Commission for local inspection contending inter alia that a plea has been taken in the written statement that since the year 1958 late Chakradhar Meher raised boundary wall and planted trees inside the boundary wall. D.W.2 and other witnesses have deposed that boundary wall has been constructed in the year 1988. To ascertain the age of boundary wall, age of trees and demarcate the house, appointment of Commissioner is imperative. The learned trial court rejected the application.

4. Mr. Nayak, learned counsel for the petitioners, submitted that the learned trial court has not considered the matter in proper perspective and rejected the application. He further submitted that the dispute cannot be resolved without appointing a Survey Knowing Commissioner.

5. Per contra, Mr. Satpathy, learned counsel for the opposite party, supported the order. He submitted that appointment of Commissioner is not to collect the evidence. It is beyond the purview of the Amin Commissioner to ascertain the age of the boundary wall and age of the trees. With regard to the construction of house, the same can be ascertained materials available on record.

6. Order 26 Rule 9 C.P.C. provides Commissions to make local investigations. The same is quoted hereunder:-

“Commissions to