Pratap Narayan Giri vs Asit Baran Giri

The plaintiff in a suit for declaration and consequential reliefs in respect of an immovable property has preferred the instant revisional application

against the acceptance of a report submitted by a commissioner, appointed under Order XXVI Rule 9 of the Code of Civil Procedure. The primary

grievance of the petitioner is that the commissioner did not adopt the appropriate procedure for holding commission since the fixed points taken by the

commissioner were part and parcel of private plots and not tri-junction points or public land marks. Even in the absence of appropriate fixed points, it is

submitted that commissioner ought to have resorted to superimposition of the map arrived at on the basis of the field report with the relevant

settlement map upon enlarging the former to scale. In view of such method not being adopted, the commissioner’s report is vitiated and ought to

have been set aside by the court below, as per the contention of the petitioner.

Learned counsel for the petitioner further submits that, the trial court while passing the impugned order erroneously equated the provisions of Section

45 of the Indian Evidence Act with Order XXVI Rule 9 of the Code of Civil Procedure. It is submitted that a report submitted by a survey-passed

commissioner upon holding local investigation was to become a part of the records, while Section 45 of the Evidence Act contemplated merely an

expert’s opinion, which could at best be opinion evidence.

As such, the commissioner’s report would be sacrosanct for all practical purposes and unassailable at a later stage of the suit in the event the

same was accepted despite proper norms of survey work having not been followed by the commissioner. Learned counsel for the petitioner also relies

on a certified copy of the evidence of the commissioner to justify his contention that nowhere in such evidence did the commissioner say that he had

resorted to the method of superimposition with the settlement map. On such grounds, the petitioner has assailed the acceptance of the commissioner

by impugned order.

 In controverting such arguments, learned counsel for the opposite party argues that the plaintiff/petitioner participated in the commission work all

along and even pointed out the relevant plots to the commissioner. No specific suggestion, as to the commissioner not adhering to the method of

superimposition, was put to the commissioner on behalf of the petitioner, during examination of the commissioner. Even in the objection filed against

the report, it is argued, the petitioner did not specifically say that the commissioner had not adopted the appropriate method of superimposition. On

such grounds, it is submitted by the opposite party that the commissioner’s report was rightly accepted by the court below by the impugned order.

Upon hearing both sides, it appears that the commissioner’s report was sufficiently elaborate on the mode adopted by the commissioner in

preparing his report. Although the petitioner might have a point in that the commissioner ought not to have taken paddy plot corners and private plots

as fixed points, however, in the absence of better fixed points, the commissioner identified such fixed points with the help of both parties, including the

plaintiff/petitioner. No objection as to such mode of survey was raised by the petitioner at any point of time throughout the commission work.

 The commissioner, in his examination, categorically stated that he had prepared the case map on the basis of settlement map, field map and writ.

Such statement could very well be construed to indicate that the commissioner adhered to superimposition of the respective maps and this Court,

sitting under Article 227 of the Constitution of India, could not relegate itself to a fact-finding forum and reassess threadbare the entire nitty-gritties of

every aspect of the commissioner’s report. Upon a perusal of the commissioner’s report itself, it is amply clear that the commissioner literally

left no ‘tri-junction stone’ unturned and searched for tri-junction points, but having failed to find out any such fixed point, resorted not only to

assistance from the parties, but also took help of the settlement map as well as the case map and field map to complete his report.

The opposite party is correct in submitting that no specific question was put by the plaintiff to the commissioner as to the commissioner having not

resorted to the method of superimposition. As such, since the commissioner did not commit any gross error sufficient to justify setting aside of the

report and since the trial court was satisfied of the veracity of such report and accepted the same, it would be improper for this Court, sitting in

revision, to upset such acceptance on an extensive enquiry into the mode and methodology which went behind preparation of the report. Prima facie,

the report was prepared painstakingly by the commissioner by adhering to whatever method was available to him in law.

 This apart, the petitioner is bound by the principles of estoppel and acquiescence in turning back and challenging the commissioner’s report on

the ground that the commissioner did not superimpose the case map and settlement map, despite the petitioner himself having not only participated in

the commission proceedings, but having pointed out and identified the plots in question to the commissioner. Moreover, the petitioner did not

specifically confront the commissioner with specific suggestions on such methodology, during the cross-examination of the commissioner, and cannot

now raise such point in revision for the first time. As such, this Court does not find any jurisdictional error or illegality in the impugned order.

Accordingly, C.O. No.1560 of 2018 is dismissed on contest, without, however, any order as to costs.