Mantu Chowdhury vs Subhas Chowdhury & Anr
2023 Latest Caselaw 1822 Cal

S/L 6
20.3.2023

Court No.652 SD CO 949 of 2020 Mantu Chowdhury Vs.

Subhas Chowdhury & Anr.

Mr. Subhajeet Mookerjee Mr. Subroto Mookherjee ... for the Petitioners.

Ms. Shila Sarkar ... for the Opposite Parties.

Being aggrieved and dissatisfied with the impugned

order no.128 dated 07.01.2020 passed by the learned Civil

Judge (Senior Division), 1st Court, Malda in O.C. Suit No.154

of 1999, present application under Article 227 of the

Constitution of India has been preferred.

In the present case, the plaintiff/petitioner herein

filed suit for declaration of title with a prayer for recovery of

possession. The plaintiff's further case is that he had

purchased 'Ka' schedule property to the plaint and on

22.04.1999, taking advantage of the absence of the plaintiff,

the defendants dispossessed the plaintiff from 'Ga' schedule

property out of 'Ka' schedule property described in the

plaint. The measurement of 'Ga' schedule described in 'Gha'

schedule to the plaint. The encroached portion is 12 ft. 4

inches in length and 8 ft. 2 inches in breadth.

In the said suit, plaintiff also filed an application

under Order XXVI Rule 9 read with Section 151 of the Code

of Civil Procedure praying for local investigation

commission for ascertainment of allegation of

encroachment. Accordingly, commissioner was appointed

who submitted his report stating that the suit land is the part

of the residential old room occupied by the defendants and

commissioner also stated that the area of the 'Ga' schedule

property is 5' x 16' = 80 sq. ft. out of 0.06 acre of land and as

per sketch map annexed with report the encroached land is

the 16 ft. long towards North to South direction and 5 ft.

wide in East to West direction.

The petitioner filed objection against the said report

stating that the encroached land is measuring with 12'4" x

8'2" = 100.72 sq.ft. but the pleader commissioner

erroneously mentioned the measurement of the encroached

land as 5' x 16' = 80 sq.ft. without relayment in gross

violation of court's order of appointment of commissioner

and accordingly petitioner herein prayed for fresh

commission.

The learned commissioner was examined before

acceptance of the report and finally, learned Civil Judge

(Senior Division) accepted the report of the pleader

commissioner by an order dated May 20, 2017. Being

aggrieved by the said order dated May 20, 2017 the

petitioner herein preferred a revisional application under

Section 115/115A of the Code of Civil Procedure before

learned Additional District Judge, Malda who after hearing

both the parties set aside the order dated May 20, 2017

passed by the learned Civil Judge (Senior Division), Malda

and granted liberty to the petitioner to file petition afresh for

local investigation commission by another pleader

commissioner.

In term of the order dated May 22, 2018 passed by the

learned Additional District Judge, 5th Court, Malda in C.R.

No.3 of 2017, petitioner filed an application afresh for local

investigation by another pleader commissioner and the

learned court was pleased to allow the said prayer. The

defendant/opposite parties being dissatisfied with the order

dated 22.3.2018 challenged the same before High Court in

CO No.1248 of 2018 under Article 227 of the Constitution of

India alleging that the revisional court below improperly

exercised its authority in connection with application under

Section 115A of the Code of Civil Procedure, while setting

aside the order dated May 20, 2017, accepting the

investigation commissioner's report as said order is not

revisable in view of the amended provisions of Section 115A

of the Code of Civil Procedure. As the earlier Revision case

was filed under misconception of fact, petitioner herein

invoked jurisdiction of this court by filing application under

Article 227 of constitution of India being C.O. 3025 of 2018

against aforesaid order dated 20th May, 2017.

On 28.6.2019 both CO 3025 of 2018 and CO 1248 of

2018 came up before this Court and after hearing, this Court

was pleased to set aside the order dated May 20, 2017 by

which the court below accepted investigation commissioner

report and this court directed the learned Civil Judge (Senior

Division), Malda to hear afresh the report of the

Commissioner which was submitted on 04.3.2003. Learned

Civil Judge (Senior Division), 1st Court, Malda thereafter

reheard the commissioner's report in view of the order

passed by this Court in CO 3025 of 2018 and CO 1248 of

2018 and learned court below by its impugned order dated

07.01.2020 accepted the report filed by the advocate

commissioner.

Learned counsel appearing on behalf of the petitioner

submits that the learned court below acted illegally with

material irregularity in exercising of its jurisdiction by

accepting the report of the advocate commissioner without

considering the written objection filed by the petitioner

against such report. He should have rejected the report of

the advocate commissioner.

He further submits that from the advocate

commissioner's report it is clear that he did not find out any

trijunction pillar and could not locate fixed points and did

not ascertain the boundary line of plot no.722 from different

sides as well as different angles to locate the actual existence

of said plot as per C.S. map or R.S. map. The order suffers

gross irregularity and without application of judicial mind.

Learned court below did not consider that the learned

commissioner did not measure the four sides of the so called

room though the learned commissioner in his report stated

that the suit land is part of the residential old room occupied

by the defendant/opposite parties. Accordingly, he has

prayed for setting aside the order impugned.

Learned counsel appearing on behalf of the opposite

parties referred the provision of Order XXVI Rule 10(2) of

the Code of Civil Procedure and contended that the report

and deposition are to be treated as evidence which forms

part of the record and such objection and the evidence

adduced by the learned commissioner in support of his

report shall be scrutinized and considered in the appropriate

stage of trial and instead the defendants challenged the said

report at this stage by preferring application under Article

227 of the Constitution of India. In this context, opposite

parties have relied upon a judgment reported in (2013) 4 ICC

922.

Opposite parties further contended that from the

impugned order it is clear that learned commissioner has

conducted the commission work in terms of the prayer of the

investigation commissioner and moreover, from the order

itself it is clear that at the time of investigation commission,

the petitioner herein did not raise any objection in respect of

the said measurement and accordingly, at this stage he is

estopped from challenging the validity and legality of the

report submitted by the commissioner. Accordingly, learned

counsel for the opposite parties submits that the order

impugned is justified and does not call for any interference.

I have carefully considered the submissions made by

both the parties.

From the order passed by this court in CO 3025 of

2018 and CO 1248 of 2018, it appears that this court while

disposing of the said revisional applications was pleased to

direct to hear afresh learned commissioner's report

submitted on 04.3.2003 giving sufficient opportunities to

hear to either of the parties to the case and decide the issue

in accordance with law supporting appropriate reasons

available under the provisions of law.

On perusal of the order impugned, it appears that

learned court below accepted the said report of learned

commissioner, since the petitioner herein did not raise any

objection at the time of investigation commission work

although commission was held in presence of both the

parties and since in the application for local investigation

commission, he did not find that any prayer was made for

the measurement of four sides of the old room, so court

below concluded that the local investigation commission

work was conducted as per writ and as per schedule of

application for investigation commission.

Needless to say that real dispute between the parties

in the present suit is about defendant's alleged encroached

portion on the plaintiff's land and the actual measurement of

the alleged encroached land for which the local investigation

commissioner was appointed. It appears that the

commissioner has submitted his report stating that the

encroached portion in the case map 5' x 16' = 80 sqft. which

is equivalent to 180 square links out of .06 acre and the said

land is part of the residential old room occupied by the

defendants.

The said commissioner in his evidence has

categorically stated that he did not find any trijunction pillar

though he has not mentioned the same in his report. He also

admitted that he did not take any permanent fixed point of

the town during investigation as fixed point for the purpose

of investigation work. He has taken west corner of plot no.

725 as fixed point only by comparing the same with R.S

map and at the same time he also admitted in his evidence

that without original R.S map he cannot say that instant

survey work was done correctly or perfectly. He also stated

that it would have been better had the fixed points are

selected from all the sides of the suit plot. He also admitted

that in connection with the 'ga' schedule he has not given any

measurement towards north south direction. Finally, he

admitted that he did not measure plot no.722 by keeping

fixed points from all four sides. Furthermore, though he has

stated in his report that encroached land is the part of the

residential old room occupied by the defendant but he

admitted that he did not measure the four sides of the so

called old room.

In view of the above, it is quite clear that said report

which was accepted by the court below by the impugned

order is full of anomalies and has not been prepared on the

basis of any scientific investigation. In his evidence, he also

admitted that the work has not been done in proper manner

and accordingly, there is sufficient scope to say that the

report of the survey commissioner suffers from serious

irregularities and it should not have been accepted by the

court below only on the ground that at the time of

investigation commission, the defendant/petitioner did not

raise any objection or that as because there was no prayer for

taking measurement of the four sides of the room, so he was

not obliged to do the same in order to ascertain the actual

encroached portion.

Fixed points in survey operations are paramount

fixtures and if the fixed points were not available near about

the disputed plot, the commissioner has to find out other

permanent structure near about the plot and take the

measurement. Here no permanent points were fixed or

located before stating the measurement of the land in

dispute and as such the sketch map and report prepared by

the survey commissioner are not reliable. In fact the

integrity, credibility and carefulness of the commissioner's

report herein is questionable. The commissioner's report is

deficient on various points as admitted by him in evidence

and as such I have no hesitation to say that the impugned

report is unsatisfactory to adjudicate real dispute between

the parties.

Considering all these the order no.128 dated

07.01.2020 and the impugned investigation commission

report dated 04.03.2003 are hereby set aside.

The learned court below is hereby directed to appoint

fresh local investigation commissioner within a period of

four weeks from the date of communication of the order with

a direction upon the learned Commissioner to make the

investigation commission in terms of prayer, covering all the

lacuna that has been pointed out in the earlier report and

such commission work shall be concluded within a period of

twelve weeks from the date of his appointment.

There will be no order as to costs.

C.O. 949 of 2020 accordingly disposed of.

Urgent photostat certified copy of this order, if

applied for, be given to the parties upon compliance of all

necessary formalities.

(Ajoy Kumar Mukherjee, J.)