Advocates:
['M/S KHETRAMOHAN DHAL', '', 'M K SAHOO', 'N BEHURIA', 'A MOHANTY', 'M/S SIDHARTH MISHRA R R MOHANTY']

Page 1 of 3

IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP No.411 OF 2019

Prakash Chandra Swain

Petitioner

Mr. N. Behuria, Advocate

-versus-

Renubala Mishra

&.

Opp. Party

CORAM:

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

06.07.2022

6.

1.

This matter is taken up through hybrid mode.

2.

The Petitioner in this CMP seeks to assail the order

dated 4^th January, 2019 (Annexure-8) passed by learned Civil

Judge (Senior Division), Athagarh in Civil Suit No.181 of

2015, whereby the report of survey knowing commissioner

deputed under Order XXVI Rule 9 C.P.C. is accepted.

3.

Mr. Behuria, learned counsel for the Petitioner submits

that a detailed objection to the report of survey knowing

commissioner was filed by the present Petitioner on 16^th

October, 2017 as at Annexure-6. At paragraph-5 of the said

objection, the Petitioner-Defendant has categorically stated

that:-

<The

Commissioner

has

not

given

the

measurement and dimension of the lands of the parties.

Besides no measurement has been given in respect of the

neighboring tenants to workout the disputed lands.=

Mr. Behuria also refers to the cross-examination of

survey knowing commissioner as at Annexure-7 in which the

commissioner deposed as under:-

// 2 //

Page 2 of 3

<I have not mentioned that length and breadth

of the plot No.2103 and its surrounding plots in my

report, but I have filed the map. I have not seen any

document of Basudev Mishra at the time of my

measurement. I have not mentioned in my report over

(sic) which plot the house of Basudev situates, but the

map shows this.=

He submits that learned trial Court while accepting the

report of survey knowing commissioner did not at all take into

consideration the objection raised by Defendant-Petitioner as

well as the admission made by the Commissioner in his

deposition, although the same was brought to the notice of the

Court. He, therefore, prays for setting aside the impugned

order.

4.

On perusal of the impugned order under Annexure-8, it

appears that learned trial Court has not, at all, taken into

consideration the objection raised by Defendant-Petitioner

while accepting the report of survey knowing commissioner.

The survey knowing commissioner was deputed for inquiry

and identification of Plot No.2103/3018/3258/4176 under

mutation Khata No.604/1505. But from the report as well as

deposition made by the survey knowing commissioner, it is

apparent that he has not mentioned the length and breadth of

the said plot.

5.

Although the Opposite Party is represented through her

learned counsel, none appears on her behalf at the time of

hearing.

6.

Taking into consideration the submission made by

learned counsel for the Petitioner and on perusal of the

impugned order under Annexure-8, it appears that learned

// 3 //

Page 3 of 3

Civil Judge (Senior Division), Athagarh has neither

considered nor answered the objection raised by the

Defendant-Petitioner while accepting the report of survey

knowing commissioner. If the objection raised by the

Defendant-Petitioner is accepted, then the report of the survey

knowing commissioner cannot be taken into consideration. In

that view of the matter, the objection raised by the Defendant-

Petitioner requires adjudication. It appears that learned trial

Court has mechanically proceeded with the matter by

accepting the report of survey knowing commissioner.

7.

In view of the above, the impugned order under

Annexure-8 is not sustainable in the eyes of law and the same

is set aside. Accordingly, the matter is remitted back to the

learned Civil Judge (Senior Division), Athagarh to reconsider

the matter by taking into consideration the objection raised by

the Defendant-Petit