The central legal point established in the judgment is that the appointment of a Survey Knowing Commissioner is justified only if the dispute pertains to the area, identification, or measurement of the land, and not to assist a party in collecting evidence.

JUDGMENT :

A.K. Rath, J.

This petition challenges the order dated 1.10.2015 passed by the learned Additional Civil Judge (Senior Division), Balasore in C.S.No.1068 of 2011-I. By the said order, the learned trial court rejected the application of defendant no.1-petitioner for reconsideration of the order dated 28.7.2015, whereby a Civil Court Commissioner was appointed.

2. The opposite parties 1 to 6 as plaintiffs instituted the suit for declaration that they are the lawful owners of the suit schedule property and the defendants have no right to extent/install/supply of electric line route over the suit schedule land, permanent injunction restraining the defendants to extend/install/supply electric line over the ‘A’ and ‘B’ schedule suit land and for certain ancillary releifs. Pursuant to issuance of summons, defendant no.1-petitioner entered contest and filed written statement denying the assertions made in the plaint. While the matter stood thus, the plaintiffs filed an application under Order 26 Rule 9 C.P.C. for deputation of a Survey Knowing Commissioner to prepare a map as to the topographical position of plot nos.532, 529 & 521 vis-à-vis 528, location of house of the plaintiffs and the land over which the proposed P.L.I. point of defendant No.1 is to be installed and location thereof, the land over which the main electric line passes and location of the electric transformer. The defendant no.1 filed objection. The learned trial court allowed the application on 28.7.2015 and appointed a Survey Knowing Commissioner. Assailing the order dated 28.7.2015, defendant no.1 filed C.M.P. No.1037 of 2015 before this Court. The said petition was disposed of granting liberty to the petitioner to file an application before the learned trial court for recalling the order dated 28.7.2015. Thereafter the petitioner filed an application for recalling the order dated 28.7.2015.

3. The learned trial court assigned the following reasons and rejected the petition.

“Admittedly, the plaintiffs in their pleading provided the A-schedule and B-schedule land with regard to the consolidation khata No.114 and 17 and categorically took the plea that they have converted some portion of the above land to home and homestead. It is the further admitted fact that the consolidation plot No.528 is not the subject matter of the suit but the recital of the plaint itself is clear that the connection is going to be made over the land of the plaintiffs and the consolidation plot No.528 is adjacent plot to that of the suit property. However, the P.L.I. point which is the subject mater of dispute is required to be ascertained, more particularly in which plot the same exists and the way which will be convenient for connection of 11 K.V. line to the L.I. point is the subject matter of dispute between the parties which is to be decided in this suit. After perusal of the order dt.28.7.15, it is clear that the plaintiffs required through the survey knowing commissioner has been elaborately discussed and the situation of the nearby transformer even though not specifically pleaded in the plaint but the same is required for proper adjudication of the suit in order to reach at a conclusion that which will be the convenient way for taking the 11 K.V. line to the L.I. point which has been applied by the defendants for connection. Accordingly, the actual map with regard to the A-schedule and B-schedule as well as consolidation plot No.528, place of installment of L.I. point and the nearby electric transformer are required for proper adjudication of the suit and as such the order was passed on dt.28.7.15 for deputing survey knowing commissioner to the spot for giving a report to this court. Accordingly, I do not find infirmity which has been made by this Court with regard to the order passed on dt.28.7.15.”

4. Heard Mr. A. Mishra, learned counsel for the petitioner and Mr. S.K. Mishra, learned counsel for opposite party nos.2 and 4.

5. Admittedly, plot no.528 appertaining to consolida