IN THE HIGH COURT OF ORISSA AT CUTTACK

C.M.P. No.891 of 2024

(An application under Article 227 of the Constitution of India)

Sirapani Mahanta & Another ...… Petitioners

-Versus-

Kanchan Mohapatra & Others ..…. Opp. Parties

Advocate(s) appeared in this case :-

_______________________________________________________

For Petitioners : Mr. S. Mishra, Advocate

Mr. Omkar Panda, Advocate

For Opp. Parties : Mr. G. Mukherji, Sr. Advocate

with Mr. A. Mishra, Advocate

_______________________________________________________

CORAM:

JUSTICE SASHIKANTA MISHRA

JUDGMENT

7^th January, 2026

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 alia, taking the stand that they have not encroached upon any portion of the suit land as alleged by the plaintiffs.

3. It is borne out from the record that an application, being I.A. No.7 of 2023 was filed by the plaintiffs seeking an order of temporary injunction. By order dated 25.07.2023, the application was rejected and was subsequently confirmed in appeal by the learned Additional District Judge, Champua in F.A.O.

No.4 of 2023, vide order dated 22.11.2023. The plaintiffs thereafter, filed an application under Order XXVI Rule 9 for a direction to depute a Civil Court Commissioner to measure the plot with the intent of finding out the status of possession in respect of the suit property by defendant Nos.1 and 2. A questionnaire was appended to the petition. Defendant Nos.1 and 2 filed an objection stating therein that their father had constructed a house having purchased the property from one Mewalal Jaiswal. The husband of the plaintiff No.1 purchased the land from said Mewalal Jaiswal and constructed a house in the year 2009. There was no allegation of any encroachment being made at that point of time. It is also stated that both houses are adjacent to each other. By the order impugned, the Court below allowed the petition.

4. Heard Mr. S. Mishra, learned counsel with Mr. Omkar Panda, learned counsel for the Defendant- Petitioners and Mr. G. Mukherji, learned Senior Counsel with Mr. A. Mishra, learned counsel for the Plaintiffs-

Opposite Parties.

5. Mr. Panda would submit that allowing the application filed by the plaintiffs under Order XXVI Rule 9 amounts to granting liberty to the plaintiffs to acquire further evidence in their favour, which is not permissible. He further submits that given the facts alleged by the plaintiffs and the denial thereof by the defendants in their written statement, there is no need for measuring the suit land by a Survey-Knowing Commissioner.

6. Per contra, Mr. Mukherji, learned Senior counsel would submit that the whole case of the plaintiffs rests upon the allegation of encroachment of a portion of the suit property by defendant Nos.1 and 2, who have started construction of their building much after construction of the building by the plaintiffs. He further submits that it being basically a boundary dispute, the same can be easily resolved by deputing the Survey-Knowing Commissioner to the field. Mr. Mukherji further submits that pursuant to the impugned order the Civil Court Commissioner has already visited the spot, made necessary measure