IN THE HIGH COURT OF ORISSA AT CUTTACK SAO No.15 of 2025 Surendranath Patro …. Appellant Mr. S.S. Bhuyan, Senior Advocate -Versus-

Pratima Sahu …. Respondent None CORAM:

MR. JUSTICE R.K. PATTANAIK

ORDER

12.12.2025 I.A. No.39 of 2025 Order No.

01. 1. Heard.

2. Instant IA is filed for dispensing with filing of the certified copy of the judgment and decree in RFA No.19 of

2024 for the reason stated.

3. Since the certified copy of the judgment in RFA No.19 of 2024 is filed today, the same is taken on record and as a result, the IA is disposed of.

(R.K. Pattanaik)

Judge SAO No.15 of 2025

1. Heard Mr. Bhuyan, learned Senior Advocate appearing for the appellant.

2. No notice is issued to the respondent as the matter is disposed of at the stage of admission.

3. Instant appeal is filed under Order 43 Rule 1(u) CPC assailing the impugned judgment dated 28^th June, 2025 passed in connection with RFA No.19 of 2024 by the learned District Judge, Ganjam at Berhampur, whereby, the suit has been remanded back with a direction for appointment of a Survey Knowing Commissioner for demarcation of the suit schedule property and its disposal afresh and in accordance with law on the grounds inter alia that the same is not permissible and hence, could not have been directed.

4. Mr. Bhuyan, learned Senior Advocate would submit that the appellant as plaintiff instituted the suit in CS No.396 of 2022 seeking a declaration of right, title, interest and possession of the suit schedule property along with other reliefs including permanent injunction and also to remove the construction over the same and to deliver its vacant possession to him. The further submission is that the learned Senior Civil Judge disposed of the suit and decreed of the same declaring the right, title and interest of the appellant over and in respect of the schedule property and directed recovery possession thereof and removal of the illegal construction put up by the respondent with the encroachment and thereafter, to deliver possession of the same to him within the stipulated period but as against the judgment of the learned Civil Judge as at Annexure-1, the respondent preferred the appeal in RFA No.19 of 2024 and it was disposed of vide Annexure-3 with the remand of the suit. The contention of Mr. Bhuyan, learned Senior Advocate is that the reports of the licensed surveyors have been considered as evidence and marked as Exts. 9, 10 and 11 respectively. The further contention is that the said reports have not been disbelieved by the learned court below, however, on the premise that demarcation is necessary in respect of the schedule property with appointment of a Survey Knowing Commissioner, directed such remand. The contention is that the learned court below is the court of facts and law and hence, would have directed such deputation of a Commissioner in terms of Order 26 Rule 9 CPC itself, however, remanded the matter back. It is the further submission that none of the conditions of Order 41 Rule 23, 23-A and 25 CPC are fulfilled and therefore, the learned court below could not have remanded the suit for a fresh disposal with a direction for appointment of a Survey Knowing Commissioner and therefore, the impugned judgment at Annexur-3 suffers from legal infirmity and hence, liable to be interfered with and set at naught.

5. Gone through the impugned judgment at Annexure-3 and on a reading of the same, the Court finds that the reports of the licensed surveyors have been considered and taken judicial notice of. In fact, such demarcation by the licensed surveyors has taken place at the instance of the parties. Said demarcation was held in the year 2020. The reports of the licensed surveyors were admitted into evidence from both the sides. Though, the learned court below has taken cognizance of the reports of the surveyors but it is not revealed from Annexure-3 that the finding therein have been disbelieved and rejected. The decree of the court of 1^st instance has not either been set aside by the