Orissa High Court

Ratnakar Giri vs Bhagaban Mandal on 26 August, 2025

                    IN THE HIGH COURT OF ORISSA AT CUTTACK
                                   SA No.345 of 1996
                   (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)

                    Ratnakar Giri                  ....                 Appellant

                                                    -versus-
                    Bhagaban Mandal                ....                Respondent

                            For Appellant           -       Mr. J.R. Dash, Advocate



                            For Respondent              -    None



                            CORAM:
                            MR. JUSTICE A.C.BEHERA

Date of Hearing :18.07.2025:: Date of Judgment :26.08.2025

A.C. Behera, J. This Second Appeal has been preferred against the reversing

judgment.

2. The Appellant in this 2nd appeal was the Defendant before the

Trial Court in the suit vide T.S. No.112/82-I and Respondent before

the 1st Appellate Court in the 1st Appeal vide M.A. No.20/88-I.

The father of the Respondent in this 2nd appeal i.e. Chakradhar

Mandal was the Plaintiff before the Trial Court in the suit vide T.S.

No.112/82-I. After the judgment and decree passed in the suit vide

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T.S. No.112/82-I, when the Plaintiff Chakradhar Mandal expired,

then, his son i.e. Bhagaban Mandal (who is the Respondent in this 2nd

appeal) preferred the 1st Appeal vide M.A. No.20/88-I being the

Appellant against the Defendant arraying him (Defendant) as

Respondent.

3. The suit of the Plaintiff (father of the Respondent in the 2nd

appeal) vide T.S. No.112/82-I against the Defendant (Appellant in the

2nd appeal) was a suit for declaration, recovery of possession and

mandatory injunction.

4. The case of the Plaintiff was that, Plot No.1273 Ac.0.35

decimals under Khata No.641 in Mouza Kuligaon, under Khantapada

Police Station in the District of Balasore originally belong to one

Bhaba Giri. The said Bhaba Giri first sold Ac.0.19 decimals out of

Ac.0.35 decimals from the western side of that Plot No.1273 to the

Plaintiff in the year 1966. Since the date of aforesaid purchase, the

Plaintiff possessed the said Ac.0.19 decimals of Plot No.1273

amalgamating the same with his other adjacent lands keeping the

same within one enclosure.

Plot No.1274 of the defendant is situated to the adjacent west of

the aforesaid purchased Ac.0.19 decimals of Plot No.1273. There was

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a middle fence in between the purchased Ac.0.19 decimals of the

Plaintiff from suit Plot No.1273 and undisputed Plot No.1274 of the

defendant and in the said middle boundary fence, there were/are

different trees.

Subsequent thereto, the defendant purchased rest Ac.0.16

decimals of Plot No.1273 from its owner Bhaba Giri. There was a

ditch in Plot No.1274 of the Defendant being adjacent to the middle

fence of the land of the Plaintiff and Defendant. He (Defendant) filled

up the said ditch through earth. At the result of which, the middle

boundary fence between Plot No.1274 of the Defendant and the

purchased Ac.0.19 decimals of land of the Plaintiff from Plot No.1273

damaged.

For which, the Defendant encroached the "Ga" schedule land

i.e. an area of Ac.0.011/2 decimal from the purchased Ac.0.19 decimals

of land of Plot No.1273 of the Plaintiff and put a new fence

encroaching the "Ga" schedule land (which is the part of the

purchased land of the plaintiff). The said "Ga" schedule land is the

suit land, which is specifically shown by the Plaintiff in rough sketch

map of the Plaint. The branches of the big trees of the defendant

raised inside his land have also been extended to the land of the

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Plaintiff, for which, it has become impossible on the part of the

Plaintiff to grow crops in his land. The Defendant created the above

problems encroaching the "Ga" schedule suit land of the Plaintiff and

requested him (Plaintiff) to sell the suit land to him (Defendant), to

which, the Plaintiff did not agree.

For which, without getting any way, he (Plaintiff) filed the suit

vide T.S. No.112/82-I against the Defendant praying for a declaration

that, the "Ga" schedule suit land is the part of Schedule "Kha" land,

within the purchased land of the Plaintiff from Plot No.1273 and to

recover the possession of the Schedule "Ga" land i.e. Ac.0.011/2 of

Plot No.1273 from the Defendant and to issue mandatory injunction

against the Defendant to erect permanent boundary on his own land

i.e. Plot No.1274 leaving the "Ga" schedule suit land in favour of the

Plaintiff and to cut the branches of the trees of the Defendant, those

have come into the land of the Plaintiff and to provide other reliefs, to

which, he (Plaintiff) is entitled for.

5. Having been noticed from the Trial Court in the suit vide T.S.

No.112/82-I, the Defendant contested the same by filing his written

statement denying the allegations alleged by the Plaintiff against him

taking his stands therein that, he (Defendant) has purchased rest

// 5 //

Ac.0.16 decimals of suit Plot No.1273 from Bhaba Giri in the year

1968. The Plaintiff was interested to purchase the said rest Ac.0.16

decimals of suit Plot No.1273 from Bhaba Giri, but, when, he

(Plaintiff)was failed in his attempt to purchase the same, then, he

(Plaintiff) bore grudge against the Defendant and filed the suit

unnecessarily only in order to harass him (Defendant). The Plot

No.1274 is the ancestral property of the defendant. He has not

deposited any earth in his Plot No.1274. He has also not encroached

any part of the purchased property of the Plaintiff from suit Plot

No.1273. The schedule "Ga" land is not inside the purchased Ac.0.19

decimals land of the Plaintiff of Plot No.1273. The Plaintiff is in

possession over his purchased Ac.0.19 decimals of Plot No.1273 and

he (Defendant) is in possession over his purchased Ac.0.16 decimals

of the said suit Plot No.1273 and there was/is the middle fence

between the purchased land of the Plaintiff and the land of the

Defendant and the said middle fence between their respective land, as

it is. He (Defendant) has never encroached any part of the land of the

Plaintiff. As, the defendant has not encroached any part of the

purchased land of the Plaintiff from suit Plot No.1273, then at this

juncture, the Plaintiff is not entitled for any relief in the suit against

him (Defendant).

// 6 //

Therefore, the suit of the plaintiff is liable to be dismissed

against him (Defendant) with costs.

6. Basing upon the aforesaid pleadings and matters in

controversies between the parties, altogether eight numbers of issues

were framed by the Trial Court in the suit vide T.S. No.112/82-I and

the said issues are:-

Issues

1. Has the Plaintiff any cause of action?

2. Is the suit barred by limitation?

3. Is the suit schedule "Ga" land a part and parcel of "kha" schedule land?

4. Has the plaintiff right, title and interest over the disputed land?

5. Has the defendant embarked upon the schedule land on 08.04.1981?

6. Has the defendant acquired prescriptive right over the schedule land by adverse possession?

7. Is the Plaintiff entitled to get the relief as asked for?

8. To what other relief, if any, the plaintiff is entitled?

7. In order to substantiate the aforesaid relief (s), sought for by the

Plaintiff against the defendant, he(Plaintiff) examined four number of

witnesses from his side including the son of the Plaintiff as P.W.1

without examining him (Plaintiff) as a witness and one document was

// 7 //

proved on behalf of the Plaintiff i.e. registered sale deed dated

16.03.1966 as Ext.1.

On the contrary, in order to nullify/defeat the suit of the

Plaintiff, the Defendant examined three number of witnesses from his

side including him (Defendant) as D.W.1and relied upon one

document on his behalf vide Ext.A i.e. registered sale deed dated

12.02.1968.

Four documents were marked as Exts.I to IV at the instance of

the Court i.e. the writ issued to the Commissioner, report submitted by

the Commissioner, case map and field book.

8. After conclusion of hearing and on perusal of the materials,

evidence and documents available in the record, the Trial Court

answered issue Nos.1, 4 and 5 against the Plaintiff and in favour of

the Defendant.

9. Basing upon the findings and observations made by the learned

Trial Court in issue Nos.1, 4 and 5 against the Plaintiff and in favour

of the Defendant, the trial Court dismissed the suit of the Plaintiff vide

T.S. No.112/82-I on contest against the Defendant as per its judgment

and decree dated 04.01.1988 and 13.01.1988 respectively assigning

the reasons that,

// 8 //

"all the witnesses examined by the Plaintiff have differed from each other in all material particulars regarding the alleged encroachment to the suit land described in schedule "Ga" against the Defendant. The report of the Commissioner and other evidence are not establishing the encroachment of "Ga" schedule suit land against the Defendant. As such, the Plaintiff failed to prove its case against the Defendant. For which, the Plaintiff is not entitled for any relief against the Defendant".

10. On being dissatisfied with the aforesaid judgment and decree of

the dismissal of the suit of the Plaintiff vide T.S. No.112/82-I passed

on dated 04.01.1988 and 13.01.1988 respectively by the learned Trial

Court, the son of the Plaintiff challenged the same preferring the 1st

Appeal vide M.A. No.20/88-I being the appellant against the

Defendant arraying him (Defendant) as Respondent.

11. After hearing from both the sides, the learned 1st Appellate

Court allowed that 1st Appeal vide M.A. No.20/88-I filed by the son of

the Plaintiff on contest against the Defendant and set aside the

judgment and decree of the dismissal of the suit vide T.S. No.112/82-I

passed by the learned Trial Court as per its judgment and decree dated

27.06.1996 and 10.07.1996 respectively and decreed to the suit of the

Plaintiff vide T.S. No.112/82-I on contest against the Defendant and

declared the right, title and interest of the Plaintiff over the "Ga"

schedule suit land and also passed the decree for recovery of

possession of "Ga" schedule suit land against the defendant and

// 9 //

directed the defendant to remove the branches of his trees spreading

over the land of the plaintiff assigning the reasons that,

"when, the report of the survey knowing Commissioner was accepted by the learned Trial Court on 01.09.1987 without any objection from the side of the Defendant and when, in the report of the survey knowing commissioner, it has been stated that, the land described in schedule "Ga" of the plaint measuring an area of Ac.0.14 decimals of suit plot No.1273 is now within the possession of the defendant and the "Ga" schedule suit land has been amalgamated with Plot No.1274 of the Defendant, then, it is held that, the defendant has encroached the "Ga" schedule suit land, for which, the learned Trial Court has committed error for non- taking to the report of the survey knowing Commissioner into consideration and the report of the survey knowing Commissioner once accepted without any objection by the Defendant, the same cannot be challenged by the Defendant during trial of the suit".

12. On being aggrieved with the aforesaid judgment and decree

dated 27.06.1996 and 10.07.1996 respectively passed in M.A.

No.20/88-I by the learned 1st Appellate Court in setting aside the

judgment and decree of the dismissal of the suit of the plaintiff vide

T.S. No.112/82-I passed by the learned Trial Court, the defendant

challenged the same preferring this 2nd Appeal being the Appellant

against the son of the plaintiff (appellant in the 1 st Appeal) arraying

him as respondent.

13. This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e.:-

// 10 //

(i) Whether, the report of the Commissioner once accepted can be challenged subsequently during trial of the suit?

(ii) Whether, the learned 1st Appellate Court is justified in reversing the judgment and decree of the Trial Court without assigning any suitable reason?

14. I have already heard only from the learned counsel for the

Appellant (defendant), as none appeared from the side of the

respondent (plaintiff) for participating in the hearing of this 2nd

Appeal.

15. When, as per the findings and observations made by the learned

Trial Court and the learned 1st Appellate Court on the basis of the

pleadings and evidence of the Parties and material and documents

available in the record, both the aforesaid formulated substantial

questions of law are interlinked having ample nexus with each other,

then, both the substantial questions of law are taken up together

analogously for their discussions hereunder.

16. The learned Trial Court dismissed the suit of the plaintiff

appreciating the evidence of the witnesses of the Parties assigning the

reasons that, all the witnesses of the Plaintiff including P.W.1 (son of

the plaintiff) have deposed in their respective evidence that, the

// 11 //

middle fence in between the land of the plaintiff and defendant is

situated in a straight line consisting of trees and their

statements/depositions regarding the alleged encroachment of the

"Ga" schedule suit land by the defendant differs from each other in all

material particulars and the report of the survey knowing

Commissioner relied by the Plaintiff is at variance between its report

and map and the survey knowing commissioner has not proved the so-

called report, map and field book vide Ext.II to IV during his evidence

in the Court in order to establish the alleged encroachment of the "Ga"

schedule suit land against the defendant.

17. The learned 1st Appellate Court reversed such findings of the

learned Trial Court accepting the report of the Commissioner vide

Ext.II assigning the reasons that, when the report of the survey

knowing Commissioner has been accepted without any objection from

the side of the defendant, the question of challenging the same during

trial by the Defendant or disbelieving the same does not arise.

So, on the basis of the report of the survey knowing

Commissioner vide Ext.II, the learned 1st Appellate Court decreed the

suit of the plaintiff and set aside the judgment and decree of the

dismissal of the suit passed by the learned Trial Court.

// 12 //

18. It is the settled propositions of law that,

"Commissioner's report, if accepted by the learned Trial Court on its submission, the same is not binding on Court. Because, it is neither final nor conclusive. Party can countermand the effect of the Commissioner's report during trial of the suit. Formal acceptance of the report of the Commissioner does not preclude any party including Defendant to challenge the same at the trial. Acceptance of the Commissioner's report by the Court on its submission means, acceptance as a part of the record. Court is not bound to accept it at the time of deciding the case finally. Because, report of the Civil Court Commissioner is like any other evidence in the suit, the same is to be considered by the Court along with other evidence on record. Report of the commissioner cannot be a sole basis or foundation of final decision of the suit. It does not bind the Court conclusively. It is like any other evidence in the suit and does not takeaway power of Court to arrive at a different view, then the views expressed by the Commissioner in his report, if, sufficient evidence is available on record".

On this aspect the propositions of law has already been clarified in the ratio of the following decisions:-

(i) In a case between Sambhunath Sahu Vrs. Upendra Palai and others reported in 1984 (I) OLR 363 in Para No.4 that,

Commissioner's report though accepted is not binding on Court. It is neither final nor conclusive. Party can countermand the effect of Commissioner's report.

(ii) In a case between Mangulu Sahoo Vrs. Gouranga Muduli and another reported in (33) 1991 O.J.D. 17(Civil) that,

// 13 //

formal acceptance of report of the Commissioner does not preclude to challenge it at the trial.

(iii) In a case between Sankar Kumar and another Vrs.

Mohanlal Sharma reported in AIR 1998 (Orissa) 117 in Para No.4 that,

acceptance of Commissioner's report at the stage of trial means, acceptance as a part of record. Court is not bound to accept it at the time of deciding the case finally.

(iv) In a case between Smt. Lalteomoni Mohanty Vrs. First Addl. Dist. Judge, Cuttack and others reported in 1996(I) OLR 342in Para No.5 that,

report of the Civil Court commissioner is like any other piece of evidence in the suit and the same is to be considered along with other evidence on record.

(v) In a case between Abhijit Lahiri Vrs. Ashok Roy reported in 2014 (Supp.) Civil Court Cases 58 (Calcutta) in Para No.11 that, the Commissioner's report is only an evidence in a case and it does not, in any way, bind the Court so as to treat it conclusive. It is like any other evidence in the suit and does not take away the power of the Court to arrive at the different conclusion, if there are sufficient evidence available on the record. The report of the Commissioner cannot be a sole basis and the foundation of a final decision of the Court.

19. In view of the propositions of law enunciated in the ratio of the

aforesaid decisions, the findings and observations made by the learned

1st Appellate Court that,

"Commissioner's report, once formally accepted on it submission without objection from the side of the Defendant, the same cannot be questioned subsequently by the defendant during trial cannot be sustainable under law".

// 14 //

As per law, commissioner's report under Order 26 rule 9 of the C.P.C. though accepted on its submission without objection from the side of the defendant, the same is neither final nor conclusive, but, any party including defendant can countermand the effect of the commissioner's report during trial. Because, formal acceptance of report of commissioner does not debar the parties including the defendant to challenge the same during trial.

20. As per the plaint of the plaintiff, the plaintiff has sought for the

reliefs only in respect of "Ga" schedule suit land stating the same as

part of his purchased Ac.0.19 decimals from suit plot No.1273 out of

Ac.0.35 decimals. The area of "Ga" Schedule suit land is Ac.0.01 1/2.

But, the learned 1st Appellate Court has specifically indicated in its

findings in Para No.6 of the judgment that, the survey knowing

commissioner has given its report that, the area of the "Ga" schedule

land is Ac.0.14 decimals, which is not at all the case of the plaintiff,

Because, the plaintiff has stated the area of "Ga" schedule suit land as

Ac.0.011/2.

On the basis of the report of the survey knowing Commissioner,

the learned 1st Appellate Court has also given its findings in Para No.6

of the judgment that, the report of the commissioner shows that, the

"Ga" schedule suit land appertaining to Plot No.1273 has been

// 15 //

amalgamated by the Defendant with his Plot No.1274 in its western

part.

The survey knowing commissioner has been examined as

D.W.2 before the Trial Court during the trial of the suit vide T.S.

No.112/82-I on dated 04.12.1987.

It appears from the judgment of the learned trial court that, the

report of the commissioner was submitted in the Court on 12.08.1984

along with map and field book and the same were marked at the

instance of the learned Trial Court as Ext.II to IV.

21. It is curious enough that, in the entire evidence of the survey

knowing Commissioner as D.W.2, he (D.W.2) has not

uttered/whispered a single word that, he has prepared the Exts.II, III

and IV and the "Ga" schedule suit land appertains to plot No.1273 and

the same has been amalgamated with Plot No.1274 in its western part.

22. When, in nowhere in the entire evidence of the survey knowing

Commissioner i.e. D.W.2, he (D.W.2) neither has stated about the

preparation of Exts.II, III and IV by him nor he has referred the said

Exts.II, III and IV in his evidence and when, it is the own case of the

Plaintiff that, "Ga" schedule suit land is Ac.0.011/2, whereas, the

// 16 //

learned 1st Appellate court has observed on the basis of the survey

knowing commissioner's report that, the said "Ga" schedule suit land

is Ac.0.14 decimals creating an another story other than the story of

the Plaintiff and when, the survey knowing commissioner i.e. D.W.2

has not deposed in his entire evidence uttering a single word in respect

of Plot No.1273 or 1274 and when, the learned 1st Appellate Court has

given its observations on the basis of the survey knowing

commissioner's report that, the "Ga" schedule property appertains to

Plot No.1273 and a portion of Plot No.1273 has been amalgamated

with Plot No.1274 to its western part as per Commissioner's report,

though the same is not in the Commissioner's report, then at this

juncture, the aforesaid baseless/foundationless findings and

observations given by the learned 1st Appellate Court in its judgment

and decree for setting aside the judgment and decree passed by the

learned Trial Court cannot be sustainable under law.

23. When, in the entire evidence of the survey knowing

commissioner i.e. D.W.2, he (D.W.2) has not uttered/whispered a

single word in respect of the suit Plot No.1273 or its adjacent Plot

No.1274 and when, the survey knowing commissioner himself has not

deposed about the preparation of the so-called report, map and field

// 17 //

book vide Ext.II to IV (those were marked at the instance of the

Court)by him and when, the said survey knowing commissioner i.e.

D.W.2 has deposed in Para No.4 of his deposition answering to the

questions of the learned counsel of the defendant that, he does not

remember the fence, to which, he has shown in his map inside Plot

No.1278 and when, Plot No.1278 is not a matter of dispute between

the Parties in the suit, then at this juncture, the findings and

observations made by the learned 1st Appellate Court cannot be

sustainable under law. Because, the report of the survey knowing

commissioner has not been duly proved by the commissioner i.e.

D.W.2 in his evidence during trial, for which, the so-called report of

the survey knowing commissioner (D.W.2) is excluded from the zone

of consideration.

On this aspect, the propositions of law has already been

clarified in the ratio of the following decision:-

In a case between Tehsildar, Urban Improvement Trust and another Vrs. Ganga Bai Menariya (dead) through LRs. And others reported in 2025 (3) C.L.J (S.C.) 48 that,

when, the main basis of the suit i.e. Patta not proved, then the suit must fail.

// 18 //

24. After exclusion of the so-called report of the survey knowing

commissioner (D.W.2) from the zone of consideration for the reasons

assigned above, there is no other evidence in the record on behalf of

the Plaintiff to establish his case against the defendant.

25. The conclusion drawn above, concerning the non-acceptance as

well as exclusion of the report of the survey knowing commissioner

(D.W.2) from the zone of consideration finds support from the report

of the following decisions:-

(i) In a case between Retnamma Vrs. Mehboob reported in 2013 (3) Civ.C.C. 65 (Kerala) in Para No.39 that,

Local commissioner report cannot independently be admitted as "evidence" in the absence of any reference in the commission report about its correctness or truth of the details shown therein.

(ii) In a case between R.Ramamoorthy Vrs. Kanakamma and others reported in 2019 (1) Civ.C.C. 337 (Madras)in Para No.16 that, In a suit for declaration and injunction--

Allegation that defendants encroached into plaintiff's land by removing portion of stone wall and throwing rubbish and draining sullage water into his property. Report of Commissioner and Taluka surveyor disclosed encroachment upon property, but, has not mentioned survey number of suit property required for adjudication of dispute. Such report cannot be accepted under law in absence of the mention of survey number of suit property required for adjudication of dispute.

(iii) In a case between Thankamani Vrs. Vasanthi reported in 2021 (1) Civ.C.C. 15 (Kerala)in Para No.14 that,

// 19 //

There was decree on the basis of report of commissioner. In the instant case, Commissioner did not go through the plaint and written statement. Commissioner could not understand the purpose, for which, he was deputed for local inspection. "A" and "B" schedule properties cannot be identified from the sketch appended to the report as said sketch does not contain even the boundaries of "A" and "B" schedule properties. Sketch also does not mention anything about "C" schedule property. Commissioner did not even identify and measure "C" schedule pathway. No effective and executable decree can be passed on the strength of sketch appended to the commissioner report. The report of the Commissioner not acceptable under law.

26. Here, in this matter at hand, when, the survey knowing

commissioner i.e. D.W.2 has not deposed anything in his

evidence/deposition referring to his so-called report, field book said

to have been prepared by him and when in his evidence, he (D.W.2)

has not deposed anything about the suit plot number (which is the

required matter for adjudication in the suit) and when, the 1st

Appellate Court has held on the basis of the survey knowing

commissioner's report that, the "Ga" schedule land is Ac.0.14

decimals, though it is the case of the Plaintiff that, the "Ga" schedule

suit land is Ac.0.011/2, then at this juncture, by applying the

propositions of law enunciated in the ratio of the aforesaid decisions,

the judgment and decree passed by the learned 1 st Appellate Court