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IN THE HIGH COURT OF ORISSA AT CUTTACK
SASHIKANTA MISHRA
Sirapani Mahanta – Appellant
Versus
Kanchan Mohapatra – Respondent
| Table of Content |
|---|
| 1. dispute over land ownership and encroachment (Para 1 , 2 , 3) |
| 2. court's reasoning for allowing a commission (Para 4 , 7 , 8 , 9 , 10 , 11) |
| 3. arguments on necessity of a survey (Para 5 , 6) |
| 4. order for expedition of trial proceedings (Para 12 , 13) |
JUDGMENT :
SASHIKANTA MISHRA, J.
This writ application has been filed by defendant Nos.1 and 2 in C.S. No.15 of 2023 pending in the Court of learned Senior Civil Judge, Champua. They seek to challenge the order dated 24.06.2024 passed by the Court below in allowing an application of the plaintiffs for appointment of Civil Court Commissioner under the provisions of Order XXVI Rule 9 of CPC.
2. Briefly stated, the facts of the case are that the plaintiffs have filed the suit inter alia, alleging that the defendant Nos.1 and 2 have encroached upon a portion of Plot No.129 (Schedule-B), which actually belongs to them and defendant No.4. As such, the suit has been filed for declaration of title of the plaintiffs and defendant No.4 and for confirmation of possession; in the alternative, for recovery of possession. The relief of permanent injunction has also been claimed. The defendant Nos.1 and 2 are contesting the suit inter ali
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.
Boundary disputes necessitate the appointment of a local Commissioner for clarity, ensuring courts fulfill the legal requirement of definitive evidence before adjudication.
The discretionary nature of powers under Order 26 Rule 9 of CPC and the limited scope for entertaining a petition under Article 227 of the Constitution of India.
The discretion to appoint a Commissioner for spot inspection and demarcation of property under Order 26 Rule 9 of CPC lies with the Trial Court, and the nature of relief is purely discretionary.
The discretionary nature of relief under Order 26 Rule 9 of CPC and the limited scope for entertaining a petition under Article 227 of the Constitution of India.
The central legal point established in the judgment is that the appointment of a Commissioner for local investigation should only be done for convenience and after considering the evidence produced b....
Appointment of an Advocate Commissioner is vital under Order XXVI Rule 9 in land disputes to ensure effective adjudication and gain necessary evidence for property encroachment issues.
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