Utpal Gomes vs Ranibala Biswas And Others
2021 Latest Caselaw 4271 Cal

AD. 20.

August 16, 2021.

MNS.

C. O. No. 84 of 2021 (Via video conference)

Utpal Gomes Vs.

Ranibala Biswas and others

Mr. Saptarshi Kumar Kundu

... for the petitioner.

Mr. Tilak Mitra

...for the opposite parties.

Affidavit-of-service filed in Court today be

taken on record.

Heard both sides.

Learned counsel for the petitioner

contends that the trial court acted palpably

without jurisdiction in accepting the final report of

the Commissioner under Order XXVI Rule 9 of

the Code of Civil Procedure, despite such report

being tainted by the admission of the

Commissioner, in his evidence, that the report

was filed about two years after the commission

work was conducted. It is further submitted that

the Commissioner's report is not valid in the eye

of law in view of the standard operating

procedure followed in such cases being not

adopted by the Commissioner inasmuch as no tri-

junction pillar was selected by the Commissioner.

Learned counsel appearing for the

opposite parties contends that the

Commissioner's report was accepted by the court

below upon giving adequate opportunity of filing

written objection and cross-examining the

Commissioner to the revisionist petitioner and, as

such, cannot be assailed under Article 227 of the

Constitution of India, since the report has become

a part of the records of the suit in terms of the

provisions of Order XXVI Rules 9 and 10 of the

Code.

Upon hearing learned counsel for the

parties and a perusal of the impugned order, as

well as the relevant commissioner's report and

evidence, it is clear that the trial court gave

adequate opportunity to the petitioner (which was

fully utilized by the petitioner) to file written

objection against the Commissioner's report and

to cross-examine the Commissioner as well.

As per the contemplation of Order XXVI

Rules 9 and 10 of the Code, the report of the

Commissioner, along with the connected

evidence and written objection of the petitioner,

shall form part of the record and be evidence in

the suit, the evidentiary value of which shall be

considered by the trial court at the time of final

hearing of the suit.

It would be premature at this juncture to

interfere with the impugned order, since the

opportunity to file written objection to the report

and to cross-examine the commissioner was

given to the petitioner and was accepted.

That part, the Commissioner clearly

explained in his evidence, as accepted by the trial

court, that no tri-junction pillar was found near the

suit property, which compelled the Commissioner

to take corners of adjacent plots of land, as per

the RS and LR maps of the concerned Mouza, as

fixed points. It is noticed that such corner plots

were chosen from different sides of the suit

property.

The judgment of the learned Single Judge

of this Court, cited by the petitioner, rendered in

Bishnupada Biring Vs. Ardhendu Sekhar

Biring reported at 2019(3) Indian Civil Cases

612 (Cal.), is not applicable in the factual context

to the present case. In the said case, this Court

found specifically that all the fixed points were

taken from the western side of the plot only,

which did not satisfy the guidelines relied on by

the opposite parties. Such choice of fixed points,

itself being vitiated, was held to be erroneous and

the commissioner's report set aside in the cited

judgment.

However, in the present case, the

Commission work was done in accordance with

law and fixed points were taken, in the absence

of tri-junction pillars, from the corners of several

adjacent plots located at different sides of the suit

property. Hence, there is no scope of

interference under Article 227 of the Constitution

of India with the impugned order accepting such

report, at this stage.

C. O. No. 84 of 2021 is, thus, dismissed on

contest, thereby affirming the impugned order

accepting the Commissioner's report.

However, it is made clear that the

Commissioner's report, as well as the petitioner's

written objection and the evidence of the

Commissioner will jointly form a part of the

records of the suit and evidence therein, the

evidentiary value of which shall be considered by

the trial Court at the hearing of the suit, without

being influenced in any manner by any of the

observations made herein.

There will be no order as to costs.

Urgent photostat certified copies of this

order, if applied for, be made available to the

parties upon compliance with the requisite

formalities.

(Sabyasachi Bhattacharyya, J.)