Bishnupada Biring vs Ardhendu Sekhar Biring

Sabyasachi Bhattacharyya, J

The present application has been preferred against an order dated October 10, 2018, accepting the report filed by a Survey Commissioner, upon rejection of the written objection filed thereto by the defendant/petitioner.

The suit was filed by the opposite party against the petitioner for declaration of title and possession as well as for permanent injunction restraining the defendant from disturbing the peaceful possession of the opposite party from the suit premises.

The defendant/petitioner is contesting the said suit by filing a written statement as well as a counter‐claim seeking declaration of the petitioner's title, for permanent injunction restraining the opposite party from disturbing the petitioner's possession and for other consequential reliefs.

In the said suit, a Survey Commissioner was appointed to hold legal investigation in respect of the suit property on the prayer of the petitioner as well as on certain additional points supplied by the plaintiff/petitioner.

The Commissioner submitted his report, to which a written objection was filed by the defendant/petitioner. The trial court, by the impugned order, accepted such report by turning down the objections taken by the petitioner.

The primary contentions of the petitioner are:

i. The Commissioner did not serve notice on the petitioner for the last two days of commission, being July 4, 2014 and July 5, 2014, and had informed the time of commencement of the commission work on the first day, that is, July 3, 2014 wrongly as 10 a.m. whereas the commission apparently started from 8 a.m.

ii. The Commissioner's report is erroneous on several grounds, primarily on the aspect that the Commissioner did not take appropriate fixed points for measurement of the suit property, which vitiated the entire report.

In this context, learned counsel for the petitioner, by placing reliance on the diary of the Commissioner, annexed to the field book filed by the Commissioner, points out that the commission work, as apparent from the said diary, was held on July 3, 2014 to July 5, 2014, from 8 a.m. to 2 p.m. on each date.

Pointing out to page‐127 of the revisional application, which is the photocopy of a notice given by the Commissioner to both sides on July 3, 2014, that is the first day of commission work, learned counsel submits that the said notice indicated that the commission work was to begin from 10 a.m. on July 3, 2014. It is submitted that, by a previous notice dated June 7, 2014, annexed at the next page, that is, page‐128 of the revisional application, it was indicated that the commission work would commence at 8 a.m on July 3, 2014. Obviously, since the notice dated July 3, 2014 was subsequent and given on the first date of the commission itself, the same was taken by the petitioner to have superseded the earlier notice. As such, the petitioner was unaware of what happened between 8 a.m. to 10 a.m. on that date.

Learned counsel for the petitioner further submits from the first page of the Commissioner's report that the Commissioner reached the destination of investigation on July 3, 2014 at 7.30 a.m., which was, in any event, before the scheduled time of commission.

It is argued on behalf of the petitioner that the petitioner specifically pointed out in paragraph no. 18 of the written objection to the Commissioner's report that the Survey Commissioner did not mention the date when the survey would be done, in the notice. It was further alleged in paragraph nos. 13 and 14 thereof that the Commissioner had prepared a false diary and had not surveyed in the locality as per the diary and that the Commissioner had noted names of persons who were not present at the property‐in‐question.

It was further stated in the objection that both parties had not identified the suit property to the Commissioner at the time of survey.

It is argued, on the basis of statements made by the Commissioner in his cross‐ examination, that the Commissioner admitted that he conducted survey work for three days, that is, July 3, 2014, July 4, 2014 and July 5, 2014 but had not served separate notices for July 4, 2014 and July 5, 2014.

It was further admitted by the Commissioner in his cross‐examination that he had mentioned the time of commencement of the survey work to be 10 a.m. on July 3, 2014.

As such, it is an admitted position that no notice was served upon the petitioner for the commission work held on the last two dates of commission, that is, July 4 and July 5, 2014. Moreover, the last notice given on July 3, 2014, pertaining to the commission work to be held on that day, mentioned the starting point of commission to be 10 a.m. and not 8 a.m., when the commission work actually started.

As regards fixed points, learned counsel for the petitioner argues on the basis of the notes in the diary of the Commissioner, that although the Commissioner recorded that tri‐junction stone was not available near the said plots and he searched for such stone on July 3, 2014, it was recorded that the commission work continued between 8 a.m. and 2 p.m., which indicates that the alleged search for tri‐junction stone must have been conducted at the inception, that is, near 8 a.m., which was 2 hours before the time notified to the petitioner for commencement of commission work.

More importantly, the diary at page‐98 of the revisional application shows that the Commissioner did not take the nearest paddy plot corners as fixed points on the date when the petitioner was present, that is, July 3, 2014, but on July 4, 2014, when the petitioner was absent, since no notice had been served on the petitioner. As such, the choice of paddy field corners as fixed points was done behind the back of the petitioner.

Hence, the said diary belies the recording in the field book, that the Commissioner had asked the plaintiff and defendant to show him the tri‐junction stones of the locality and thereafter the Commissioner searched for fixed points with the help of settlement map of the year 1954‐57 from the nearest paddy plot corners. It is evident from the diary itself that paddy plot corners were taken as fixed points on the second day of commission and not immediately after the alleged failure of the petitioner to find out the tri‐junction stone, which impression was sought to be given in the field book of the Commissioner.

It is further argued that the Commissioner admitted in his cross‐examination that he had taken three fixed points, being x, y and z, all of which were taken at the western side of the suit plot. It was further admitted that the Commissioner had not taken any fixed point from the southern, northern and eastern sides.

This apart, the Commissioner admittedly compared the paddy plots, in respect of which fixed points were taken, with the settlement records of 1954‐55. However, such records themselves were under challenge by the petitioner before the appropriate authority.

This apart, the settlement maps of 1954‐55 could not retain their relevance or accuracy after about 65 years and there had to be major changes in the corners of the paddy plots over more than six decades. Hence, the paddy plot corners could not be proper fixed points in the context.

In any event, it is argued, the Commissioner acted unlawfully in choosing the paddy fields as the basis of fixed points, although the petitioner's residential house was situated near the suit plot itself. There were other permanent structures as well near the suit plot. It is well‐settled that the Commissioner has to search for structures of permanent nature in the vicinity of the locale for the purpose of taking fixed points if tri‐junction stones are not available. Instead of doing so, the Commissioner took variable and impermanent landmarks, being the alleged corners of paddy plots, as fixed points, which vitiated not only the consequent measurements but the entire commission work, since the rest of the commission was based on such fixed points.

Learned counsel for the petitioner cites a judgment reported at 70 C.W.N. 266 [Balai Chandra Ghose vs. Tarapada Ghosh & Ors.], wherein it was held by a co‐ordinate bench of this court that a Commissioner's report is not sacrosanct and even an accepted report, if wanting in some respect, could justify rejection by the court.

Learned counsel next cites a judgment reported at 2002 AIHC (Bom) 688 [Govind S/o Raoji Katole vs. Ganpati s/o Tukaramji Khanke dead], wherein it was laid down that the Commissioner could not take imaginary points as fixed points. Even if no permanent structure was available in the immediate vicinity of the disputed property, the Commissioner was to find out other structures near about the plot and take measurements accordingly.

The petitioner next cites an un‐reported judgment rendered by a learned Single Judge of the Orissa High Court on July 19, 2017 in CMP No. 590 of 2014 [Halu @ Haluri Jena vs. Manmohan Das & another], wherein it was held that if there is no fixed point available, other permanent structures near the plot, like temples, old trees, etc. can be taken as fixed points.

Learned counsel next cites another single bench judgment of the Orissa High Court reported at AIR 1990 Orissa 32 [Badan Prasad Jaswal vs. Bira Khamari and another], wherein it was held that no imaginary points could be taken as fixed points for a survey commission.

While controverting such arguments, learned counsel for the opposite party submits that the time mentioned in the notice dated July 3, 2014 (10 a.m.) was an obvious mistake, since the Commissioner, by a previous notice, had already indicated that the commission work would start at 8 a.m., which was also reflected in the diary of the Commissioner. The petitioner, despite having full knowledge of such mistake at all times, is trying to take advantage of the same in arguing that proper notice was not given to the petitioner for the commission work even for the first date.

It is further argued that the Commissioner only admitted in his cross‐examination that he had not given separate notice for the second and third dates of commission. However, the Commissioner had given proper notice for the first date of commission on both parties, and thereafter had given oral notice to the parties as to the next date of commission, on each of the dates of commission. It is argued that such verbal notice was sufficient in the context.

In support of such proposition, the opposite party cites a judgment reported at AIR 1962 SC 666 [Nilkantha Sidramappa Ningashetti vs. Kashinath Somanna Ningashetti and others], wherein it was held that the date of service of notice, as contemplated under column‐3, Article 158 of the Limitation Act, was not necessarily a notice in writing. It was held therein that intimation to pleaders amounted to service of notice on the parties about the filing of an arbitral award.

Learned counsel for the opposite party also cites a judgment reported at AIR 1995 Gauhati 57 [Umesh Chandra Paul vs. Suresh Chadnra Paul and another], wherein it was held that since the advocate of the defendants had appeared on various dates an other defendants were present at the locale on the relevant dates, the objections as to the commission being held in absence of one of the defendants could not be upheld.

Learned counsel also cites an un‐reported judgment of this court dated February 21, 2019, passed in C.O. No. 612 of 2019 [Sri Manoranjan Bar vs. Sri Jugal Kishore Panda], and argues that the revisional application against acceptance of a Commissioner's report was dismissed therein in identical circumstances. In the said case, no notice of the second date of commission was given to the petitioner and the cross‐examination of the Commissioner revealed several discrepancies in the measurements taken by the Commissioner. The Commissioner had also not taken proper fixed points. However, the acceptance of the report was not interfered with by this court.

As regards fixed point, learned counsel for the opposite party submits that as per the field book of the Commissioner, neither the defendant nor the plaintiff could show any tri‐junction stone at the locality.

No objection in that regard was taken in the field at the time of commission work.

In this context, learned counsel for the opposite party cites a judgment reported at 2004 AIHC 3465 (Gauh) [Jogendra Chandra Shill vs. Anukul Chandra Shill and ors.] and 2001(3) GLR 43 (Gauh) [Chaya Rani Das and Ors. vs. Bireswar Rudra Paul], in both of which it was held that an objection as to fixed points is to be taken before the Survey Commissioner at the field itself.

By placing reliance on the written objection filed by the petitioner, learned counsel for the opposite party argues that not only was the objection as to notice regarding the second and third dates absent from the written objection, the allegation with regard to notice, which found place only in paragraph no. 18 of the said objection, was as vague as could be. In the absence of pleadings, the petitioner could not argue on the point of absence of notice before this court.

Even as regards fixation of improper fixed points, such objection was not taken in specific terms in the written objection filed by the petitioner in the court below. It is argued on the basis of the Commissioner's report itself that the Commissioner used the Gunter's chain for taking measurements and had no other option in the absence of tri‐junction stones in the locality, but to take the nearest paddy plot corners as fixed points, which were compared with the available settlement records and found to be correct. Hence, there could not be any infirmity in taking the paddy plot corners as fixed points.

Learned counsel for the opposite party places reliance on an un‐reported judgment of a co‐ordinate bench of this court dated April 23, 2014 passed in C.O. No. 3017 of 2010 [Md. Siraj Sirdar vs. Praffulla Mondal and Ors.], wherein the learned Single Judge accepted the guidelines laid down in the book "Lawyer's Guide To Survey" by Jugal Kishore Chatterjee and passed the order on the basis of the said guidelines. The opposite party cites the relevant extracts from page‐21 of the said book, wherein point no. (3) states that tri‐junction point of three C.S. plots, which are paddy khets belonging to three different persons, could be taken as fixed points provided they were properly and satisfactorily verified.

Thus, it is argued that the Commissioner was absolutely justified in taking the paddy plot corners as fixed points.

Learned counsel for the opposite party relies on an un‐reported judgment of another co‐ordinate bench passed on August 17, 2015 in C.O. No. 1795 of 2014 [Pulin Behari Patra & Ors. vs. Kanailal Jana & Ors.], which held that in the absence of better fixed points in the form of tri‐junction stones, the Commissioner could take three corners of three plots as an alternative measure.

Thus it is argued that the trial court was justified in accepting the Commissioner's report.

As regards the first objection to the report, that is, the absence of notice, it is palpably evident from the records that the Commissioner himself admitted that no separate notice was given for the second and third dates of commission. Since there is no proof of any oral notice having been given, it has to be construed that the petitioner had no notice of the commission of work held on July 4, 2014 and July 5, 2014, which itself is sufficient to vitiate the report.

This apart, the petitioner is justifying in arguing that the Commissioner, on the first date of commission, that is, July 3, 2014 itself, gave a notice indicating that the commission work would start from 10 a.m. the same day. Such mention of time could not be a mistake, as argued by the opposite party, in view of the Commissioner having admitted in his cross‐examination that he mentioned 10 a.m. as the starting point of commission for July 3, 2014. Thus, a reasonable doubt is cast as to the veracity of the commissioner's finding in the report as to both sides having failed to point out tri‐junction stones, since it is anybody's guess as to what happened on July 3, 2014 at the locale of the commission between 8 a.m. and 10 a.m.

It is also evident from the diary of the Commissioner himself that the paddy plot corners were taken as fixed on the second date of commission, that is, July 4, 2014, for which no notice was given to the petitioner. Therefore, the petitioner did not have any opportunity to take objection to such choice of fixed points on the relevant date at all. Thus, the argument, that the objection as to fixed points had to be taken in the field before the Commissioner, does not hold good ground in the facts of the instant case.

Moreover, even leaving apart the challenge pending at the instance of the petitioner against the settlement records, a settlement map of 65 years ago could not be a valid basis for ascertaining the exact position of the paddy plot corners, taken as fixed points by the Survey Commissioner. By passage of time, it can be reasonably concluded that the vagaries of nature must have changed the contours of the paddy plots, including the corners of such plots, even without taking into account the human factors which could bring about changes to the location and exact position of the said paddy plot corners. By their very nature, the paddy plot corners are impermanent. As such, those were not reliable fixed points at all.

Even the guidelines referred to by the opposite party and the judgments in such context, cited by the opposite party, refer to paddy plot corners being taken from different directions of the suit plot and those paddy plots had to belong to different persons. In the present case, there is no indication that the different paddy plots belonged to separate persons; on the contrary, the Commissioner admitted in his evidence that all the fixed points were taken from the western side of the suit plot only, which did not satisfy the guidelines relied on by the opposite party. Hence, since the choice of fixed points itself was palpably erroneous, the entire measurements in the Commissioner's report stood vitiated and had to be set aside by the trial court.

As to the unreported judgment of this court in in C.O. No. 612 of 2019 [Sri Manoranjan Bar vs. Sri Jugal Kishore Panda], the context was different therein, as the notice of only a single date of commission was doubtful therein, whereas, in the present case, the major portion of the commission work was done without notice to the petitioner. Even the notice of the first date was defective as to time, depriving the petitioner of proper representation at the time of commission. Moreover, the commissioner's evidence in the present case, contrary to the said reported judgment, indicates towards gross irregularities in measurement and in taking fixed points, which were the bases of such measurement. As such, the present case varies widely on facts from the reported judgment and the same ratio cannot be applicable here.

In such view of the matter, the trial court acted without jurisdiction in brushing aside the objection of the defendant/petitioner and accepting the Commissioner's report.

Accordingly, C.O. No.4038 of 2018 is allowed on contest, thereby setting aside the impugned order and directing the Commissioner's report, which was accepted by the impugned order, to be expunged from the records.

The trial court is directed to appoint a fresh Survey‐passed Commissioner from its panel for the purpose of holding local investigation in terms of the same points on which the impugned report was filed. Such appointment shall be done within three weeks from the date of communication of this order to the court below.

In view of the long time lapse in between, the trial court is requested to ensure that the commission work is concluded as expeditiously as possible, preferably within two months from the appointment of the new Survey‐passed Commissioner.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.