Swapan Kumar Tribedi vs Tulasi Tribedi & Ors
2022 Latest Caselaw 54 Cal

10.1.2022
 SL No.5
Court No.8
   (gc)

                                SAT 86 of 2020

                            Swapan Kumar Tribedi
                                      Vs.
                             Tulasi Tribedi & Ors.

                             (Via Video Conference)

                               Mr. Sandip Das,
                               Mr. Sajal Kanti Bhattacharyya,
                               Mr. Sarthak Burman,
                                                      ...for the Appellant.
                               Mr. Jibon Ratan Chatterjee, Sr. Adv.,
                               Md. Hafiz Ali,
                                      ...for the Defendants/Respondents.

The affidavit of service filed in Court be kept with the

record.

This second appeal has come for admission. The

second appeal is arising out of a judgment and decree of

affirmation by the learned Additional District Judge, Kandi,

Murshidabad in Title Appeal No.18 of 2017 arising out of the

judgment and decree passed by the learned Civil Judge

(Junior Division), 2nd Court, Kandi, District-Murshidabad in

Title Suit No.37 of 2001.

Mr. Sandip Das, learned Counsel appearing on behalf

of the appellant has argued that both the Courts below have

completely misconstrued the report filed by the learned

Commissioner and disregarding the fact that although the

report of the learned Commissioner may not have been

tendered any evidence or exhibited but in terms of Order 26

Rule 10(2) of C.P.C., it forms part of the record and the

evidence taken by him shall be the evidence in the suit. It is

submitted that the learned Trial Court although had noticed

that the learned Commissioner had reported that the

defendants encroached some portion of the property of the

plaintiff, but while arriving at the conclusion, has

disregarded the same and dismissed the suit filed by the

plaintiff. The Appellate Court committed similar error and

the findings arrived at by both the Courts with regard to the

encroachment are perverse and, accordingly, the second

appeal should be admitted.

On 9th March, 2001 while hearing the said matter, we

directed the production of the plaint in Title Suit No.144 of

2005 and the report of Radhamadhab Ghosh dated 21st

December, 2009 that was exhibited in the said proceeding.

The reason being that the Title Suit No.144 of 2005 was

instituted by the defendants in this proceeding against the

plaintiff, it would appear from record that in Title Suit

No.144 of 2005, the investigation was conducted by a survey

passed lawyer, namely, Radhamadhab Ghosh unlike in the

present case and his report dated 21st December, 2009 was

marked as 'Exhibit-C' stating that the suit plot of the

present defendants is bounded by boundary wall. The said

report does not show whether the present

respondents/defendants encroached the plaintiff's land as

mentioned in 'Ka-1' schedule of the plaint.

On consideration of both the reports, both the Courts

have opined that it would not appear from the report dated

12th January, 2011 the extent of the land of the plaintiff

alleged to have been encroached by the defendants. It is not

correct that both the Courts have ignored the report filed by

the Commissioner in the said proceeding. Both the Courts

have taken note of Order 26 Rule 10(2) of C.P.C, although

not specifically mentioned in both the judgments. The

defendants have encroached some part of the property

which has been categorically stated in both the judgments

as consideration of the materials on record and the earlier

Commissioner's report being 'Exhibit-C' that there has been

no encroachment on the plaintiff's land by the defendants in

the present suit. The concurrent findings on facts are not to

be likely interfered with unless it appears to be perverse.

We are unable to accept the submission made on

behalf of the appellant that both the Courts have committed

error in arriving at the conclusion that there has been no

encroachment on the plaintiff's land. In absence of any

such perversity, we do not find any substantial questions of

law raised in the appeal for which the second appeal needs

to be admitted.

The second appeal, being SAT 86 of 2020, accordingly,

stands dismissed.

However, there shall be no order as to costs.

All parties shall act on the server copies of this order

duly downloaded from the official website of this Court.

 (Kesang Doma Bhutia, J.)                   (Soumen Sen, J.)