CMP/1500/2026 of KEDAR MUDULI Vs SUDORSAN MUDULI on 10 September 2026

ORDER

10.09.2026

1. This matter is taken up through hybrid arrangement.

2. By filing the present CMP, the Petitioners, who are Defendant Nos.1 to 11 in Civil Suit No.214 of 2022, have assailed the order dated 12.08.2026 passed by the learned Civil Judge, Senior Division, Khurda, whereby their application filed under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (for short, “the CPC”) seeking deputation of a Survey Knowing Commissioner for identification and demarcation of the suit land and its boundary was rejected.

3. Learned counsel for the Petitioners contends that there is a boundary dispute between the parties, particularly in respect of the western side boundary of the suit land. The

Opposite Parties instituted the aforesaid civil suit before the learned trial Court seeking declaration of their right, title and interest, confirmation of possession and permanent injunction in respect of the suit land.

4. Learned counsel for the Petitioners further contends that during the cross-examination of Opposite Party No.1, it has come out that the dispute regarding the western boundary of the suit land has been existing since 2002 and that the suit land had been demarcated on several occasions. It is also submitted that the suit land had earlier been demarcated through a private Amin and Opposite Party No.1 has stated that he has no objection if the suit land is demarcated by an Amin deputed by the learned trial Court.

5. The learned trial Court, while considering the application under Order XXVI Rule 9 CPC, observed that there was no necessity for deputation of a Survey Knowing Commissioner at that stage of the proceeding and further held that the application had been filed with a view to linger the proceeding of the suit. On such consideration, the application was rejected.

6. This Court, in Ram Chandra Sahoo v. Biswa Mohan Maharatha,1 while considering the earlier decision in 1 C.M.P. No.664 of 2015, decided on 27.01.2017

Bhabesh Kumar Das v. Mohan Das Agrawal2, has held as follows:

“8. As has been held by this Court in Bhabesh Kumar Das cited Supra, when the legislature in its wisdom has not prescribed the stage of appointment of survey knowing commissioner, the power of the Court cannot be cabined, cribbed or confined. The survey knowing commissioner [can be appointed] at any stage of the suit provided the pre-conditions enumerated in Order 26 Rule 9 CPC exist.”

7. In the present case, from the materials placed before this Court and the submissions advanced by learned counsel for the Petitioners, it appears that the dispute between the parties relates, inter alia, to the western boundary of the suit land. The fact that the suit land had earlier been subjected to demarcation and that Opposite Party No.1 has, as stated by learned counsel for the Petitioners, expressed no objection to demarcation through an Amin deputed by the Court, also assumes relevance.

8. In such circumstances, the appointment of a Survey Knowing Commissioner cannot be said to be wholly unnecessary merely on the ground that the suit has already progressed. There is no embargo under Order XXVI Rule 9 CPC against appointment of a Survey Knowing

2 C.M.P. No.664 of 2015, decided on 27.01.2017

Commissioner at a particular stage of the suit, provided the requirements of the provision are otherwise satisfied.

9. The learned trial Court, while rejecting the application, has primarily proceeded on the ground that the application was intended to delay the proceeding. However, in view of the nature of the dispute concerning the identification and demarcation of the suit land, this Court is of the considered view that local investigation by a competent Survey Knowing Commissioner would facilitate proper adjudication of the dispute. The apprehension of delay can be addressed by fixing a time limit for completion of the commission work and submission of the report.

10. It is, however, made clear that the purpose of such local investigation is only to identify and demarcate the suit land and the disputed boundary in accordance with the relevant records and the order of the learned trial Court. The Commissioner shall not adjudicate upon the right, title, interest or possession of either of the parties.

11. Considering the submissions made by learned counsel for the Petitioners, the nature of the dispute, the averments made in the CMP and the materials available on record, this Court is of the considered view that the impugned order dated 12.08.2026 calls for interference.

12. Accordingly, the order dated 12.08.2026 passed by the learned Civil Judge, Senior Division, Khurda in Civil Suit No.214 of 2022 is hereby set aside.

13. The application filed by the Petitioners under Order XXVI Rule 9 CPC is allowed. The learned trial Court shall appoint a competent Survey Knowing Commissioner/Amin, in accordance with law, for identification and demarcation of the suit land, particularly the disputed western boundary, after giving due notice to all the parties concerned.

14. The learned trial Court shall prescribe an appropriate time limit for completion of the commission work and submission of the report. The Commissioner shall conduct the local investigation in accordance with the order of appointment and shall submit his report before the learned trial Court within the time so stipulated.

15. It is made clear that the Commissioner shall confine the investigation to identification, measurement and demarcation of the suit land and shall not record any finding or express any opinion regarding the right, title, interest or possession of the parties. The report of the Commissioner shall be considered by the learned trial Court in accordance with law and shall not, by itself, determine the rights of the parties.

16. It is further made clear that this Court has not expressed any opinion on the merits of the rival claims of the parties in the suit, and the learned trial Court shall adjudicate the suit independently and in accordance with law.

17. The CMP stands allowed.

18. Issue urgent certified copy of this order as per Rules.

(Dr. Sanjeeb K Panigrahi) Judge

Sipun