Page 1 of 6. IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.2127 of 2025 Maa Jagat Janani, Presiding Deity Of Maa Jagat Janani Temple Bije, Unchabali & Ors. ..... Petitioners Represented by Adv. - Alok Kumar Mohanty -versus- State Of Odisha & Ors. ..... Opposite Parties Represented by Adv. – Mr. U.C.Jena, A.S.C. CORAM: THE HON’BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA Order No. ORDER 16.01.2026 01. 1. This matter is taken up through Hybrid Arrangement (Virtual/ Physical Mode). 2. This matter has been listed on the Court’s own motion as the learned counsel for the Petitioner pointed out certain inadvertent typographical errors in order dated 12.01.2026. Perused the order dated 12.01.2026, it appears that the order has been typed out wrongly. Accordingly, the earlier order dated 12.01.2026 is recalled and in its place the following order be passed and uploaded in the website. 3. Heard learned counsel for the Petitioners as well as learned Addl. Standing Counsel for the pro forma-Plaintiff. Perused the application. 4. By filing the present application under Article 227 of the Page 2 of 6. Constitution of India, the Petitioner has prayed for setting aside of the order dated 14.11.2025 passed by the learned Civil Judge (Senior Division), Champua in C.S. No.28 of 2013 thereby rejecting the application of the plaintiff-Petitioner under Order 39 Rule 7 of the CPC. 5. Learned counsel for the Petitioners at the outset contended that the Petitioner as plaintiff filed a suit for declaration of right, title and interest over the suit land by way of adverse possession and he has also prayed for confirmation of his possession and for injunction. During the pendency the aforesaid suit, the Plaintiff-Petitioner moved an application under Order 39 Rule 7 of CPC for local inspection through the Court appointed Survey Knowing Commissioner. It was further submitted that such local inquiry is for a just decision in the suit. It was also contended that such inquiry would assist the Court in deciding the suit and that the same will not cause any prejudice to the defendants. On such ground, learned counsel for the Petitioner contended that the learned trial court has committed an illegality in rejecting the prayer for appointment of Survey Commissioner for the local inspection. 6. Further, referring to the impugned order dated 14.11.2025 at Annexure-6, learned counsel for the Petitioners submitted before this Court that it was only on the objection of the learned AGP, that the application of the Petitioner under Order 39 Rule 7 was rejected by the learned trial court. He further submitted that no doubt Order 39 Rule 7 of CPC confers a discretion, however, such power can only be exercised to assist the Court to come to a just conclusion. The prayer made in the application filed under Order 39 Rule 7 is only to assist the Court and to find out regarding the possession of the Page 3 of 6. Plaintiff-Petitioners over the suit land. At this juncture learned counsel for the Petitioners submitted that the possession of the plaintiff over suit land is for several decades. Therefore, a local inquiry would clarify the aforesaid fact and would help the Court to arrive at a just conclusion in this case. He further contended that the learned trial Court has dismissed the application filed by the plaintiff based on the objection of the learned AGP to the effect that the same would expand the scope of the suit and any order passed on such application would assist the plaintiff in collecting evidence in support of his claim. 7. Perused the impugned order dated 14.11.2025 which has been assailed by the plaintiff-Petitioners in the present CMP application. The plaintiff-Petitioners being aggrieved by rejection of his application under order 39 Rule 7 for local inspection of the suit scheduled property has approached this Court with a prayer for setting aside order dated 14.11.2025 and for a further direction to the learned trial court to allow local inspection of the suit scheduled property through a Pleader Commissioner. The application of the plaintiff-Petitioners was objected to by the learned AGP. It was the specific stand of the defendant No.3 that he had leased out the land by virtue of lease deed dated 01.08.1943 in favour of the M/s ESSEL Mining and such lease deed was renewed subsequently from time to time. The plaintiff contended before the learned trial court that the inspection is necessary to ascertain the nature of the suit land and the presence of a temple thereon and that such inspection would aid the Court in proper adjudication of the dispute involved in the suit. 8. According to the learned trial court, the issue which is to be determined in the suit is with regard to the claim of the plaintiff of adverse possession over the suit scheduled land for a period of 70 Page 4 of 6. years. On the contrary, the defendants put forth a plea regarding a subsisting lease in favour of a third party. The learned trial court has prima facie held that the issue is primarily to be decided on the basis of documentary evidence. Moreover, the claim of the Petitioners- plaintiff regarding continuous open and hostile possession can only be established by the adducing evidence in that regard. Thus, it was held by the learned trial court that a local inspection at this stage would not assist the learned trial court for a just and fair adjudication of the dispute. On the contrary, the same would amount to permitting the plaintiff to collect evidence through the Court machinery. Moreover, the learned trial court has specifically observed that the plaintiff has failed to demonstrate any specific or exceptional reason as to why the physical features of the suit land cannot be proved through evidence in Court. With the aforesaid observation the learned trial court has dismissed the application of the plaintiff filed under order 39 Rule 7. 9. Order 39 Rule 7 of the CPC, indisputably, confers a discretionary power on the trial court for detention, preservation, inspection etc of subject matter of suit. Looking at the application filed by the plaintiff-Petitioner, this Court observed that the Petitioner has prayed for inspection of the subject matter of the suit. One of the basic requirements for passing order under order 39 Rule 7 is that the plaintiff is incapable of inspecting the subject matter of the suit or it is difficult on his part to adduce evidence in respect of the suit property. In either case, the objective is to assist the Court for a just and fair adjudication of the dispute involved in the suit. In other words to get an order under order 39 Rule 7 the plaintiff has to establish that he is incapable of having the knowledge of the subject matter of dispute in view of the nature of the suit property or is Page 5 of 6. prevented from having such knowledge. 10. In the present case, the plaintiff claims title through adverse possession over the suit scheduled land. Thus, the trial court has to proceed, at that stage, on the basis of the plaintiffs pleadings that the plaintiff is in possession over the suit land. In such a scenario, there is no difficulty on the part of the plaintiff to either have the knowledge of the subject matter of the dispute or to establish the nature and identity of the suit property before the learned trial court, by adducing evidence. The assistance of the Pleader Commissioner would be required only in a scenarios where the plaintiff is incapacitated or incapable of having the full knowledge of the subject matter of dispute. 11. It is also the settled possession of law that the report of the commissioner appointed order under 39 Rule 7 is not legal evidence unless the same is proved legally by examining witnesses. The aforesaid view of this Court gets support from the decision of this Court reported in 1990 Vol 1 OLR 247, AIR 80 Odisha 98, 1992 (2) OLR 14, 2013 (Supp) 1 OLR 253. 12. Similarly, it is also a settled principle of law that order of inspection under order 39 Rule 7 cannot be directed for collecting evidence for the party. Assistance of the Court would be necessary only where the party is incapable of having the knowledge or inspection in view of the nature of the suit land. When the land is open and witnesses are available, no commissioner is to be appointed under order 39 Rule 7. This view of the Court get support from the judgment reported in Vol 62 (1986) CLT 201. 13. In the ultimate analysis of the factual as well as the legal aspects involved in the present matter this Court is of the considered view that the learned trial court has not committed any illegality in of Page 6 of 6. exercising in its discretion under order 39 Rule 7. As such, no fault can be found in order dated 14.11.2025 so as to compel this Court to interfere with the impugned order in exercise of its power of superintendency under article 227 of the Constitution of India. Accordingly, this Court finds no merit in the present application. Hence, the same is dismissed. 14. However, while dismissing the present application this Court makes it clear that irrespective of rejection of his application under order 39 Rule 7 of the CPC, it is open to the Petitioners to engage a Private Commissioner for inspection of the suit subject matter, and if required, such report may be cited as evidence from the side of the plaintiff subject to formal prove thereof by the plaintiff. 15. With the observations made in the preceding paragraph, the CMP application stands disposed of. ( Aditya Kumar Mohapatra) Judge Rubi