JUDGMENT :

Dr. A.K. Rath, J.

This petition challenges the order dated 17.4.2015 passed by the learned Additional Civil Judge (Jr. Divn.), Ranpur in C.S. No.14 of 2008. By the said order, learned trial court rejected the application of the plaintiff under Order 26 Rule 9 C.P.C. for appointment of survey knowing commissioner.

2. The petitioner as plaintiff instituted the suit for declaration of right, title and interest, recovery of possession and permanent injunction impleading the opposite party as defendant. The case of the plaintiff is that the suit schedule land has been recorded in his name in the sabik as well hal ROR. In the ceiling case no.536/76, lease was executed in his favour for an area of Ac.01.00 in the year 1976 by the Tahasildar, Ranpur. Thereafter, possession was delivered. A big plot of Govt. land was lying vacant to the southern side of the ‘B’ schedule land. He possessed an area of Ac.0.06 dec. of Govt. land and amalgamated the same to his lease hold land. Thereafter, he has constructed a house over the land. The Land Acquisition Officer, Bhubaneswar has acquired Ac.0.77 dec. of land from the southern side in the year 2003 for expansion of National Highway No.5. He is in possession of rest Ac.0.29 decimals of land. One Budhi Sahoo was the recorded owner of Plot Nos.570 and 571, area Ac.1.80 dec. which is adjacent to the northern side of the suit plot. Defendant has purchased an area of Ac.2.00 of land from Budhi Sahoo. In between plot no.570 and the National Highway No.5, the suit land situates. Since the defendant has no approach road to the National Highway, he approached the plaintiff to sale the western half of the balance land. He did not accede to such request. Since the defendant has created disturbance in his peaceful possession, he filed the suit.

3. Pursuant to issuance of summons, the defendant entered appearance and filed written statement denying the assertions made in the plaint. It is stated that the suit land is not identifiable. The rough sketch map given in the schedule of land is not in accordance with the proper scale and not supported by settlement map. He has constructed his residential house over plot no.570. The plaintiff is not in possession of an area Ac.0.29 dec. of land after acquisition of land. There is an approach road. Thus the question of requesting the plaintiff to alienate the land does not arise.

4. While the matter stood thus, the plaintiff filed an application under Order 26 Rule 9 C.P.C. for deputation of a survey knowing commissioner. The defendant filed objection stating that the evidence of the defendant has not been closed and to protract the litigation, the petition has been filed. Learned trial court came to hold that the evidence of the plaintiff is closed. The case has been posted for cross-examination of defendant. If any survey knowing commissioner will be deputed, then it would amount to facilitating the plaintiff to collect evidence through the court. Such a petition cannot be effective before closure of evidence. Held so, learned trial court rejected the application.

5. Mr. P.K. Rath, learned counsel for the petitioner submitted that the dispute pertains to the measurement of the suit land. Learned trial court committed a manifest illegality in rejecting the application under Order 26 Rule 9 C.P.C. holding that the evidence of the plaintiff is closed. The case has been posted for cross-examination of defendant. If any survey knowing commissioner will be deputed, then it would amount to facilitating the plaintiff to collect evidence through the court. A survey knowing commissioner can be appointed at any stage of the suit. Since the dispute pertains to identification of land, learned trial court is not justified in rejecting the petition.

6. Per contra, Mr. S. Mishra, learned counsel for the opposite party submitted that there is no infirmity in the order passed by the court below.

7. In Bhabesh Kumar Das v. Mohan Das Agrawal, 2015 (II) CLR 603, this Court held as