Biswanath Rath, J. - (1.) This Civil Miscellaneous petition arises against an order dated 06.10.2015 passed by the District Judge in FAO No. 12/20 of 2011 rejecting an application under Order 39 Rule 7 of the Code of Civil Procedure at the instance of the petitioner for inspection of the suit land.
(2.) Short fact involved in the case is that petitioner as plaintiff filed a suit bearing Civil Suit No. 5 of 2009 in the court of Civil Judge (Junior Division), Bargarh against the defendant opposite party seeking declaration of right, title and interest over the 'B' Schedule land which corresponds to 'C' Schedule land and for permanent injunction restraining the defendant -opposite party from entering upon the suit land.
(3.) Excluding the unnecessary facts since not relevant for the decision of the present matter, relevant fact in the matter involved in the case is that in the pending suit, the plaintiff filed an application for temporary injunction under Order 39 Rule 1 of the Code of Civil Procedure registered as I.A. No. 2 of 2009 temporarily restraining the opposite party from entering upon the suit land and from disturbing the peaceful possession of the petitioner. The opposite party -defendant resisting the said application, contended that the application should be rejected on the sole ground that the petitioner is not the owner in possession of the suit land. Hearing both parties, the trial court vide order dated 26.08.2010 dismissed the I.A. No. 2 of 2009 for having no merit. Consequently the petitioner preferred an appeal bearing FAO No. 12/20 of 2011 and during pendency of the said FAO, the petitioner filed an application under Order 39, Rule 7 of the Code of Civil Procedure for issuing a Commission for inspection of the suit land in order to ascertain the existing structure and actual physical possession of the parties over the suit land. This application was also objected by the opposite party on the premises that there being no dispute regarding identity of the suit land, there is no such necessity. The right, title and interest of the parties can be decided on the available materials on record and therefore, there is no question of deputation of a Pleader Commissioner at this stage. Hearing both parties, the lower appellate court vide impugned order dated 06.10.2015 at Annexure -4, rejected the application under Order 39 rule 7 of the Code of Civil Procedure holding that pending adjudication of the suit, the plaintiff is trying to collect materials and further since the question of possession can be substantiated by the parties leading evidence, this is not the stage to entertain such an application at the instance of the plaintiff.;