Chaya Rani Das and Others vs Bireswar Rudra Paul

This Second Appeal is against the decree dated 4.4.1994 passed by the learned District Judge, West Tripura District in Title Appeal No. 12 of 1993 dismissing the appeal and thereby affirming the decree dated 22.7.1991 passed by the learned Additional Sub-Judge, West Tripura, Agartala in Title Suit No. 26 of 1979.

The plaintiff-respondent brought the suit for declaration of title and recovery of possession of the land described in Schedule ''B'' of the plaint which is a part of the plaint Schedule ''A'' land.

The plaintiffs case is that he is the owner of the plaint Schedule ''A'' land by purchase under Registered Sales Deed dated 10.10.63 and it is covered by C.S. plot No. 14396 under Khatian No. 16852 or Mouja Agartaia Sub-Division measuring an area of 0''189 acres and just after purchase he has been possessing the same living thereon by constructing dwelling huts. It is the further case of the plaintiff-respondent that in the year 1967 the defendant purchased C.S. plot No. 37579 recorded in Khatian No. 16901 of Mouja Agartaia measuring 0''095 acres lying to the adjacent north of the aforesaid land of the plaintiff and in between the two plots there was a kuchha bamboo fencing demarcating the two plots. But, in the year 1971 the defendants encroached upon the land of the plaintiffs over an area measuring about 120''ft in the length i.e. from east to west and 3,ft in average in bredth from north to south by shifting the boundary fencing and the pillars. The aforesaid encroached portion of the land of the plaintiff is described at plaint Schdeule ''B'' and it is also stated that the aforesaid encroached portion measures approximately 0''0139 acres equavallent to 9 karas 2 krantas and 7 dhurs.

The defendant contested the suit by filing a written statement denying the averments made in the plaint and it was contended by the defendant that he purchased the land under his possession including the suit land by a registered Kabala on 7.10.67. After framing of issues and in the course of hearing, the plaintiff filed an application for issuance of a Commission for local investigation to ascertain the location of the land belonging to the plaintiff and also the defendant as per the Survey number in the revenue records and for plotting of the suit land. The trial court vide its order dated 17.4.84 passed an order for issuance of a Commission for local investigation and the application was not objected to by the defendant and as such one Shri R. Sarma Purkayastha was appointed as Survey Commissioner. It was ordered that the Commissioner should rely the suit land on the basis of the C. S. map, khatian and plot and respective title deeds of the parties. After executing the Commission, the Commissioner submitted his report. Against the report of the Commissioner objection was invited from the defendant. After hearing the objection the report of the Commissioner was admitted to evidence. The report was provisionally accepted vide order dated 6.6.1986. Thereafter, the plaintiff amended the suit land i.e. plaint Schedule ''B'' land on the basis of the report of the Survey Commissioner and after closure of the evidence and final hearing the learned trial court passed the judgment and decree for evicting the defendant from the suit land. The aforesaid decree of the trial court was confirmed by the learned first appellate court and hence the present appeal.

Mr. A.M. Lodh, the learned senior counsel appearing on behalf of the defendant-appellants has submitted that though it is true that in the present case the location and plotting of the land belonging to the plaintiff and the defendant are main important point and on the basis of which the suit land is to be located and thus the learned senior counsel has submitted that issuance of Commission for local investigation was necessary. But In present case, the report of the Survey Commissioner could not be acted upon as the objection raised by the defendant on the report of the Commissioner was not finally decide by the courts-below and as such the finding of the courts-below more particularly that if first appellate court are purverse. According to the learned senior counsel, many questions were raised for disbelieving the report of the Commissioner but the same were not decided by the courts-below and without deciding the objection raised by the defendant, the courts-below acted upon the report of the Commissioner as gospal truth and finally the case was decided on the basis of the Commissioner''s report.

On the other hand, Mr. A.K. Bhowmik, the learned senior counsel appearing for the respondent has submitted that no illegality or irregularity was committed by the learned trial court nor the first appellate court in accepting the report of the Commissioner and also relying upon it as the basis for decision in the present case. The learned senior counsel submitted that the defendant filed objection against the report of the Commissioner and after hearing the objection the report of the Commissioner was acted upon by the learned trial court.

Section 75 of C.P.C empowers the court to issue Commission subject to such conditions and limitation as may be prescribed, on matters mentioned in the aforesaid section. Under Order XXVI Rule 9 provision for issuance of Commission for local investigation is found and the procedure of the Commissioner is prescribed in Order XXVI Rule 10. Sub-rule (2) of Rule 10 prescribes that the report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record. It is also further prescribed that the Commissioner may be examined in the open court touching any of the matters referred to him or mentioned in his report or as to his report, or as to the manner in which he has made the investigation. Again, Rules 230 to 238 of the Civil Courts'' Rules and Orders of Gauhati High Court further regulates the detailed procedure to be adopted in issuance of Commission for local investigation. And in this case, I have persued the records of the trial court and found that the learned trial court issued the Commissioner following the procedure prescribed by law.

The main question to be decided in the present suit was whether the suit land at plaint Schedule ''B'' was part of plaint Schedule ''A'' land which is the land of the plaintiff or whether the suit land at plaint Schedule ''B'' is out side the land of the plaintiff. Thus relying or plotting of the respective lands of the plaintiff and defendant became necessary and as such trial court issued the Commission. And as noted above, the Commissioner after investigation submitted his report wherein it is stated that the land at plaint Schedule ''A'' did not cover the entire suit land at plaint Schedule ''B'', but major portion fell in the area of plaint Schedule ''A'' and accordingly the plaintiff amended the description of the suit land at plaint Schedule ''B''.

Mr. Lodh has submitted that objection filed by the defendant against the report of the Commissioner was not considered by the courts-below and in the objection the defendant submitted that the fixed point selected by the Commissioner for measuring or surveying of the plots cannot be relied upon. Thus, field map prepared by the Commissioner was wrong and could not be acted upon. It was also submitted that there were other fixed points from which the measurement could have been started.

It is true that the defendant filed the objection to the report of the Survey Commissioner on 20.1.1986 and the learned trial court after hearing the parties on the objection provisionally accepted the report of the Survey Commissioner by its order dated 6.6.1986.

As noted above, the report of the Survey Commissioner is admissible in evidence. If the defendant raised any objection to the report of the Commissioner he should have applied to the report of the Commissioner in person before the court. The defendant has submitted that the fixed point submitted by the Commissioner was not fixed point. But the Commissioner at paragraph (1) of his report has clearly mentioned that the parties pointed out the fixed point and he started his measurement from the aforesaid fixed point as pointed out by the parties. If the defendant raised any objection at the time of selection of the fixed point he should have raised at the relevant time at the field. And in the objection filed before the court also the defendant should have mentioned that the fixed point was selected by the Survey Commissioner in spite of the protest or objection from the defendant. In absence of any such statement in the objection before the court that the defendant made objection to the selection of the fixed point, mere disputing the selection of the fixed point at the time of filing objection before the court cannot be sustained. And the defendant has not prayed for examining the Survey Commissioner. Thus, the objection of the defendant cannot be sustained. .

Regarding acceptance of the report of the Commissioner, the oft. Quoted decision of the Privy Council in the case of AIR 1940 3 (Privy Council) relying upon earlier decision of the Judicial Committee reported at 13 M.I.A. 607 may be re-called :-

"It has been laid down that Interference with the result of a long and careful local investigation except upon clearly defined and sufficient grounds is to be deprecated. It is not safe for a Court to act as an expert and to overrule the elaborate report of a Commissioner whose integrity and carefulness are unquestioned, whose careful and laborious execution of his task was proved by his report and who had not bindly adopted the assertions of either party."

The above decision of the Privy Council still holds the field and the same has been ruled upon him and again by the Courts in India.

Coming now to our present case, the Survey Commissioner was appointed and there has been no allegation against the Survey Commissioner regarding this integrity or carefulness. It is also submitted at the bar by the learned counsel of both the parties that Survey Commissioner was one from the approved list maintained by the District Court and the Survey Commissioner in presence of the parties made the local investigation on the basis of the title deeds, revenue documents and he submitted the detailed report along with a hand-sketch map. I do not find any ground to interfere with the finding of the learned courts-below in accepting and acting upon the resort of the Survey Commissioner.

The submission of Mr. A.M. Lodh relying upon the decision of the Supreme Court in the case of Mehrunnisa (Smt) and Others Vs. Visham Kumari (Smt) and Another, that the first appellate court passed the Judgment without reading the evidence is perverse and should be interfered with is not sustainable inasmuch as in the present case the first appellate court appreciated the evidence oral and documentary including the report of the Commissioner and passed the impugned order.

For the reasons state above, the appeal fails and accordingly it is dismissed with costs.