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IN THE HIGH COURT OF ORISSA AT CUTTACK
K.R. Mohapatra, J.
Sitaram Jayapuria – Appellant
Versus
Tarani Singh @ Bag & Anr. – Respondents
CMP No. 1401 of 2022
Decided On : 24-01-2023
Order XXVI Rule 9 CPC - Application for Survey knowing Commissioner - The court held that the application for a Survey knowing Commissioner under Order XXVI Rule 9 CPC was not maintainable as the party seeking the appointment had not yet made any endeavor to prove their case by leading evidence, and there was no dispute regarding the identity of the land.
Fact of the Case:
The Defendant filed an application under Order XXVI Rule 9 CPC to depute a Survey knowing Commissioner to submit a report regarding possession and use of the land. The trial Court rejected the application, leading to the filing of the current CMP.
Finding of the Court:
The Court found that the application for a Survey knowing Commissioner was not maintainable as the Defendant had not yet made any endeavor to prove their case by leading evidence, and there was no dispute regarding the identity of the land.
Issues: The issue was whether the application for a Survey knowing Commissioner under Order XXVI Rule 9 CPC was maintainable in the absence of the Defendant proving their case by leading evidence and in the absence of any dispute regarding the identity of the land.
Ratio Decidendi: The Court held that the application for a Survey knowing Commissioner was not maintainable as the Defendant had not yet made any endeavor to prove their case by leading evidence, and there was no dispute regarding the identity of the land.
Final Decision: The CMP was dismissed as it was devoid of any merit.
JUDGMENT
K.R. Mohapatra, J. - This matter is taken up through Hybrid mode.
2. Order dated 29th November, 2022 (Annexure-7) passed by learned Civil Judge (Junior Division), Jharsuguda in Civil Suit No.43 of 2020 is under challenge in this CMP, whereby an application filed under Order XXVI Rule 9 CPC filed by Defendant No.1/Petitioner has been rejected.
3. It is submitted that the suit has been filed for declaration of right, title and interest and that the sale deed No.520 dated 15th April, 2000 is void and to declare the Schedule 'A' land to be joint family property of Defendant No.2. During course of recording of evidence on behalf of Defendants, an application under Order XXVI Rule 9 CPC was filed by Defendant No.1 to depute a Survey knowing Commissioner to submit report as to whether Defendant No.1 is in possession over the suit land and that Defendant No.1 is using the same as the only access to his house. Learned trial Court holding that the identity of the land is not in dispute, rejected the petition. Hence, this CMP has been filed.
4. Mr. Das, learned counsel for the Petitioner submits the Defendant No.1 is in possession over the Schedule 'B' land, which is being used as the only access to the house of Defendant No.1. In order to elucidate such dispute, a Survey knowing Commissioner should have been appointed to submit report to that effect. Learned trial Court, without considering the same, rejected the petition under Order XXVI rule 9 CPC. Hence, he prays for setting aside the impugned order under Annexure-7 and direct the learned trial Court to depute a Survey knowing Commission to submit a report with regard to possession and use of the 'B' Schedule land.
5. Upon hearing learned counsel for the Petitioner and on perusal of record, it appears that the suit is posted for further evidence on behalf of the Defendants. Law is well-settled that the party has to prove its case by leading cogent evidence. If the Defendant No.1 is possessing the land which is being used as the only access to his house, the onus is on him to prove the same. A Survey knowing Commission cannot be appointed to procure the evidence on behalf of a party to the suit. Since the Defendant No.1 has not yet made any endeavour to prove his case by leading evidence, a petition under Order XXVI Rule 9 CPC is not maintainable. Further, there is no dispute with regard to identity of the land. The Survey knowing Commissioner cannot be appointed to seek a report to establish the case of a party. In that view of the matter, this Court is of the considered opinion that learned trial Court has committed no error in dismissing the application under Order XXVI Rule 9 CPC.
6. Thus, the CMP being devoid of any merit stands dismissed.
AI
The party seeking the appointment of a Survey knowing Commissioner under Order XXVI Rule 9 CPC must have made an endeavor to prove their case by leading evidence, and there should be a genuine disput....
The court ruled that an application for appointing a survey commissioner must demonstrate necessity, which was not established in this case, leading to the setting aside of the trial court's order.
The court ruled that plaintiffs are responsible for proving their claims in litigation and cannot rely on the court to gather evidence on their behalf, emphasizing the judicial principle of party res....
Boundary disputes necessitate the appointment of a local Commissioner for clarity, ensuring courts fulfill the legal requirement of definitive evidence before adjudication.
The court ruled that the appointment of a Pleader Commissioner is not warranted when evidence can be conveniently provided by the parties themselves, especially before trial has progressed.
The appointment of a Civil Court Commissioner under Order XXVI Rule 9 is essential in boundary disputes to ascertain possession and clarify any allegations of encroachment.
The court established that additional evidence cannot be admitted in appellate proceedings if the party had prior opportunities to present it, and that the appointment of a commissioner should not be....
The appointment of a survey knowing pleader commissioner is not for collecting evidence but to assist the court, and petitioners must prove their case to justify such an appointment.
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