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K. R. MOHAPATRA
Sitaram Jayapuria – Appellant
Versus
Tarani Singh @ Bag – Respondent
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 on
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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