Rukmini Padhiyani vs Satyabhama Devi and Others

B.K. Ray, J.—The unsuccessful Plaintiff in both the Courts below is the Appellant. Her husband instituted the suit out of which the present appeal arises for a declaration of his title to the portions of the land shown in plans �A� and �B� attached to the plaint which appertained to the area purchased by him under the sale deed (Ext. 1), for eviction of the Defendants from those portions as they had encroached upon them and for other ancillary reliefs, such as, recovery of Rs. 200/- and Rs. 23/- as damages from Defendant Nos. 1 and 2 and from Defendant Nos. 3 to 5 respectively and for a direction to Defendant Nos. 3 to 5 to remove the green fence they had put on that portion of the suit land encroached upon by them. During the pendency of the suit, the original Plaintiff having died the present Appellant was substituted in his place as the legal representative. According to the plans attached to the plaint and according to the plant itself the portions marked EFKL. EBMN, OPQR and DGHJ appertained to the Plaintiffs plot Nos. 1 and 2 and were encroached upon by the Defendants. It is alleged in the plaint that the Plaintiffs husband purchased plot Nos. 1 and 2 under the sale deed (Ext. 1) on 5-4.1948. Defendant No. 1 purchased the adjoining area from the same vendor by the sale deed dated 5-2-1959 (Ex. B). Plot Nos. 1 and 2 marked in the plans in the plaint correspond to settlement plot Nos. 416/1 and 416/2. Defendant Nos. 1 and 2 encroached upon portions marked EFKL, EBNM and OPQR and the other Defendants encroached upon the portion marked DGHJ in the plans.

The defence of Defendant Nos. 1 and 2 is that the portions alleged to have been encroached upon by them appertain to the portion purchased under Ex. B. The defence of the other Defendants is that the portion alleged to have been encroached upon by them appertains to their land which adjoins the Plaintiff�s land purchased under Ex. 1.

In the trial Court the Plaintiff filed three applications successively before commencement of hearing during of hearing and after hearing of the suit for appointment of a survey-knowing commissioner to ascertain and report if the alleged encroached portions appertained to the Plaintiff�s land. The trial Court dismissed all the three applications. The Plaintiff however, in course of hearing of the suit examined a surveyor as P.W. 2 who had prepared the plan attached to the plaint. P.W. 2 proved the plan which was marked as Ext. 3. The trial Court did not accept the evidence of P.W. 2 and dismissed the suit.

The Plaintiff carried an appeal before the lower appellate Court against the decision of the trial Court and in the Court below the Plaintiff renewed his prayer for appointment of a survey-knowing commissioner for the very same purpose for which he had filed applications in the trial Court. The Court below rejected the prayer of the Plaintiff and dismissed the appeal. The Plaintiff, therefore, preferred Second Appeal No. 12 of 1969 in this Court. This Court allowed the same and remanded the case to the trial Court. The ordering portion of the judgment of this Court in the aforesaid second appeal runs thus:

On Plaintiff�s application in the trial Court, a survey knowing commissioner would be appointed to find out if the alleged encroached portions as shown in Ext. 3 appertain to the Plaintiff�s land purchased under Ext. 1. The parties, if they would so like, may refer any other relevant points for investigation and report by the commissioner. The relevancy of the point to be referred to the commissioner would be decided by the trial Court. After the commissioner would submit his report, the parties, if they so like, would exam me him for the purpose of clarification of his report or for the purpose of showing that his report is either wholly or partly incorrect. Thereafter, on consideration of the evidence already on record and of the report of the commissioner and his evidence, if any, and after hearing the parties, the trial Court would dispose of the suit:

After the order of remand when the case went back to the trial Court, an application was filed by the Plaintiff for appointment of a survey-knowing commissioner and as per the directions of this Court a commissioner was appointed. The commissioner submitted his report. He was examined by the, Plaintiff as P.W. 3 and his report was proved and marked as Ext. 13. After examination of the commissioner parties argued their respective cases on 26-10-1973 and the trial Court posted the case for judgment. Before the date fixed for judgment, on 27-10-1973 the Plaintiff filed an application before the trial Court praying that the trial Court before final judgment in the suit should give its decision regarding the commissioner�s report. This was obviously done to enable the Plaintiff to take out a fresh commissioner, in case P.W. 3�s report was rejected by the trial Court. The trial Court, however, by its order dated 30-10-1973 rejected that application of the Plaintiff with an observation that the reasons for rejecting that application would be given in the main judgment itself. Thereafter, by its final judgment dated 9-11-1973 the trial Court dismissed the suit.

From the judgment of the trial Court it is seen that it has discarded the evidence of P.W. 2; the person who prepared the sketch map attached to the plaint showing the encroached portions on the Plaintiff�s land and discarded the sketch map (Ex. 3) prepared by P.W. 2. The judgment further shows that the trial Court has rejected the map and report of P.W. 3, the commissioner, and held that the measurements given in the Plaintiff�s sale deed (Ex. 1) are approximate and not exact because the word �sumar� used in Ex. 1 means �approximately�.

Against the aforesaid decision of the trial Court the Plaintiff preferred an appeal. The lower appellate Court dismissed the same. The Court below has come to the conclusion that as the measurements given in the Plaintiff�s sale deed are approximate no useful purpose will be served by appointing a survey-knowing commissioner to find out if the alleged encroachment appertain to the-Plaintiff�s land covered under Ex. 1. Such a conclusion has been arrived at for the same reason given by the trial Court. Besides coming to that conclusion the Court below also has rejected the report and sketch map of P.W. 3 as well as the evidence of P.W. 2 and the plan (Ex. 3). practically accepting the reasonings given by the trial Court. Hence the present appeal.

Mr. S. Mohanti, learned Counsel for the Appellant, first of all argues that the conclusions reached by the Courts below that the measurements given in Ext. 1 are only approximate are not correct. Mr. Mohanti urges that both the Courts below �have wrongly said that the word �sumar� means �approximately�, This contention of Mr. Mohanti appears to be a sound one. A reference to the Oriya dictionary Bhasakosh clearly shows that the meaning of the word �sumar� as �on calculation�. Therefore, it cannot but be held that by using the word �sumar� in the sale deed (Ex. 1) while giving the dimensions of the land covered under it the vendor means �on calculation�. It follows therefore that the observation of the Court below that no useful purpose will be served by deputing a survey-knowing commissioner to find out if the encroached land is a portion of the land covered under Ex. 1 must be held to be an erroneous one. In disagreement with the conclusion of the Court below I hold that the measurements of the land as given in Ex. 1 are by calculation and not by approximation.

Mr. Mohanti then contends that the trial Court should have given its decision on the commissioner�s report prior to delivering its final judgment in the suit. By not giving its decision on the commissioner�s report earlier as prayed for by the Plaintiff the trial Court deprived the Plaintiff of an opportunity of taking out a fresh commission, in case P.W. 3�s report was rejected by it. Law is well settled that a survey-knowing commissioner�s report is only a piece of evidence and If the Court for any reason or other does not accept it as a piece of evidence while hearing objections to the report, it is always open to the party at whose instance the commissioner had been deputed to take out a fresh commission for the same purpose. Therefore, Mr. Mohanti submits that after P.W. 3 submitted his report and map and after the Court heard objections to the commissioner�s report and map, it should have given its decision rejecting them so that the Plaintiff could have moved the trial Court to take out a fresh commission. There appears to be substance in this contention of Mr. Mohanti. The judgment of the trial Court shows that it did not allow the Plaintiffs�s applications dated 27-10-1973 because according to it, there was no such direction in the order of remand of this Court. This reasoning given by the trial Court for not allowing the Plaintiff�s prayer made in her application on 27-10-1973 is not supported by the remand order itself. The remand order clearly says that the suit should be disposed of afresh in accordance with law. When law provides that after a commissioner�s report is rejected, the party at whose, instance the commissioner had reported would be given a fresh opportunity to take out a fresh commissioner, the trial Court is not right in saying that the remand order was a direction against law. On this point the Court below, however, has not accepted the reasoning given by the trial Court. While dealing with the point urged before it on behalf of the Appellant that the trial Court should have given its decision on the commissioner�s report before delivering final judgment in the suit, the Court below observes in the following way:

Before me, Plaintiff makes the grievance that the learned lower Court�s understanding of the directions in the remand order is wrong. It is submitted that unless the course suggested by the Plaintiff is adopted, the Hon�ble Court�s order itself will become nugatory. Accordingly, it was further urged that if this Court agreed with the learned lower Court that the commissioners finding is not acceptable, the remand of the suit for fresh local investigation by the same commissioner or by another commissioner to be appointed would be the proper course. There is enough force in this contention.

Even inspite of the aforesaid observation the Court below did not accept the Plaintiff�s contention because according to it the measurements of the land covered under Ex. 1 are not exact as has been pointed out above. Since on this point I have already held that the Court below is wrong this appeal must succeed.

I, therefore, allow the appeal, set aside the judgment and decree of the Court below and remand the case to the trial Court once again with the following directions: On Plaintiff�s application in the trial Court either the survey-knowing commissioner (P.W. 3) or a new commissioner will be appointed to find out if the alleged encroached portions as shown in Ex. 3 are portions of the land covered under Ex. 1 taking the measurements as given in Ex. 1 to be correct. After the commissioner submits his report, the trial Court will first of all decide if the report submitted will be accepted as a piece of evidence. If the trial Court accepts the commissioner�s report as a piece of evidence, after hearing the parties it shall then proceed to dispose of the suit in accordance with law after giving the parties an opportunity once again to be heard on the entire evidence on record. In case the commissioner�s report is not accepted, the trial Court will give the Plaintiff an opportunity, if permissible under the law to take out a fresh commission, and thereafter dispose of the suit as indicated above. Costs of the appeal shall abide the final result.

Ordered accordingly.