Sri Badal Sabar vs Smt. Ujjala Debnath
2021 Latest Caselaw 616 Tri

                 IN THE HIGH COURT OF TRIPURA
                              AGARTALA

                            CRP No.20 of 2021

Sri Badal Sabar
son of late Biswambar Sabar Resident of
East Singhichara, P.S.-Khowai, District-
Khowai Tripura
                                                       ......... Petitioner
                              -Versus-

Smt. Ujjala Debnath
wife of late Kamini Debnath, resident of
East Singhichara, P.S.-Khowai, District-
Khowai Tripura.
                                                      ........ Respondent

For the Petitioner (s)             :    Mr. S. Das, Adv.
For the Respondent (s)             :    Mr. S. Lodh, Adv.
Date of hearing and delivery of    :    28.06.2021
Judgment & order
                                           YES   NO
Whether fit for reporting          :             √


                 HON‟BLE MR. JUSTICE S. TALAPATRA
                            JUDGMENT & ORDER

Heard Mr. S. Das, learned counsel appearing for the

petitioner as well as Mr. S. Lodh, learned counsel appearing for the

sole respondent.

[2] This is a petition under Article 227 of the Constitution of

India urging for interference in the order dated 09.01.2020 delivered

in Title suit No.18 of 2017 by the Civil Judge, Jr. Division, Khowai,

Khowai Tripura. By the said order dated 09.01.2016, the Civil Judge

has rejected the prayer of the petitioner for discarding the report of

the Survey Commissioner as appointed by the said court. Thus, the

report submitted by the Survey Commissioner has been accepted by

the Civil Judge.

[3] The said order has been questioned by the petitioner on

the ground that neither the court nor the Survey Commissioner has

complied the provision of Order XXVI, Rule 18 of the CPC. It is made

imperative under Order XXVI, Rule 18 of the CPC that where a

Commission for local inspection is appointed under Order XXVI, Rule

9 of the CPC "the Court shall direct that the parties to the suit shall

appear before the Commissioner in person or by their agents or

pleaders." The Survey Commissioner was appointed by the order

dated 18.02.2019, but there was no direction in terms of Order

XXVI, Rule 18 of the CPC, meaning the parties in the suit were not

directed to appear before the Survey Commissioner during the

survey. On scrutiny of the records, it appears that even the terms of

the local investigation was not laid down following the requirements

of Order XXVI, Rule 9 of the CPC. Order XXVI, Rule 9 of the CPC

provides that in any suit in which the court deems a local inspection

to be requisite or proper for purpose of „elucidating any matter in

dispute or of ascertaining the market value of any property or the

amount of any mesne profit or damage or annual net profit‟, the

court may issue commission of such person as it thinks fit directing

to make „such investigation and to report thereon‟ to the court.

[4] In the case in hand, one Tehshilder of Singichara Tehshil

Kachari was appointed as the Survey Commissioner on 03.09.2019.

The said Survey Commissioner had submitted his report. The

plaintiff, the respondent herein, had immediately accepted the said

report but the defendant did not accept the said report and on

30.09.2019 the defendant filed an objection against the said report.

The said report dated 07.08.2019 is available with the instant

petition being Annexure-6. For purpose of reference, the entire text

of the said report is reproduced hereunder:

"To The Hon‟ble Civil Jude [Jr. Division], Court No.3 Khowai Judicial District, Khowai Tripura Subject- Report regarding demarcation in connection with case No.T.S.18 of 2017.

Hon‟ble Madam,

With due respect, it would like to inform you that I alongwith Sri Dipu Debbarma, Tehasilder of Singicharra T.K. demarcated the suit land measuring 0.99 acres covering hal plot No.3233 of mouja- Purba Singichara on 05.08.2019.

As per record it appears that Khatian No.1367 appertaining to Hal plot No.3223 area measuring 0.99 acres class of land „Tilla‟ of mouja-Purba Singicharra under Singicharra T.K is recorded in favour of Smti Ujjala Debnath, W/O- Lt. Kamini Debnath of Barabil, Khowai.

During demarcation it appears that Smti Ujjala Debnath, W/O- late Kamini Debnath of Barabil, Khowai is possessing 0.73 acres out of 0.99 acres of land from plot No.3223. Remaining 0.26 acres of land in Hal Plot No.3233 of mouja Purba Singicharra is presently possessed by Sri Badal Sabar, S/O- Lt. Bisambar Sadar of Sipaihour, Khowai.

In this context, it is to be mentioned that Sri Sabar is occupying the said land measuring 0.26 acres (3233/P) by constructing a Pukur along with the plot No.3233 area measuring 0.42 acres recoded in favour of his mother Sumitra Sabar and 2(two) others being Khatian No.337 of mouja-Purba Singicharra.

Here, it is also to be mentioned that due to construction of Pukur by Sri Sabar, the tilla land of plaintiff petitioner is affected.

This is for favour of your kind information please.

Yours faithfully Sd/ Illegible Office-in-Charge Singichara T.K.

Khowai, Tripura"

[4] While scrutinizing the records and as observed earlier, it

is found that there is no terms of reference. In the order dated

18.02.2019 whereby the Survey Commissioner was appointed for

local investigation, the following observation had been made in lieu

of the terms of reference:

Hence, Tahasildar of Singicherra under Khowai Sub-Dvision is hereby appointed as a Survey Commissioner in this case as per the prayer of Ld. Counsel Mr. C. Das.

[5] Thus, it may be deemed that the terms of reference as

formulated by the plaintiff in their application as filed under Order

XXVI Rule 9 of the CPC has been accepted. This court is constrained

to observe that the procedure that has been followed cannot be the

procedure prescribed by the statute. In the order appointing the

Commissioner, terms of reference shall clearly be mentioned.

[6] On scrutiny of the records, it appears in Para-3 of the

said application filed on 12.02.2019, the plaintiff has stated that it is

essential to find out the following points by appointing the Survey

Commissioner:

"i. Whether the constructed bund of the defendant, the land of the plaintiff is affected due to accumulated of water?

ii. If so what is the measurement of the affected land belongs to the plaintiff?

The said prayer as stated earlier has been allowed. The

defendant filed the written objection on 30.09.2019 against the said

report of the Survey Commissioner stating that the said report

defies logic. In para-4 of the said written objection, it has been

further stated that the plaintiff managed to prepare the said report

dated 07.08.2019 in absence of the defendant or the other local

people, and in violation of the order of the trial court. According to

the defendant, the Survey Commissioner alone signed that report

even though they were working in a team. These are the grounds

raised against the said report. By the impugned order dated

09.01.2010, the Civil Judge has discarded the said objection of the

defendant by observing that the defendant did not make any prayer

for cross-examination of the Survey Commissioner, even though the

defendant had been given opportunities to press such prayer.

However, the said objection as raised by the defendant has been

rejected by the Civil Judge. According to the Civil Judge, the Survey

Commissioner only was supposed to sign the report which has been

prepared by him.

[7] Mr. Das, learned counsel appearing for the petitioner has

submitted that for non-observance of the provisions of Order XXVI,

Rule 18 of the CPC, the survey which had been directed to be made

by the Civil Judge stands vitiated. The said survey has been turned

out to be an ex-parte survey. The concept of ex-parte survey has

not been adopted in the CPC. On the contrary, Order XXVI, Rule 18

of the CPC mandates the civil court for directing the parties to

appear and witness the survey. Mr. Das, learned counsel has further

submitted that even the survey report is so ambiguous that it would

not serve any purpose of justice. Therefore, this court should

interfere the impugned order and direct the Civil Judge to reject the

report of the Survey Commissioner.

[8] Per contra, Mr. Lodh, learned counsel appearing for the

respondent has submitted that the defendant did not raise any

objection in respect of compliance of the provisions of Order XXVI,

Rule 18 of the CPC. Thus, this court by invoking its supervisory

jurisdiction under Article 227 of the Constitution of India may not

interfere with the impugned order. According to Mr. Lodh, learned

counsel, if the report does not elucidate the dispute, the Civil Judge

will not utilise it when appreciating the evidentiary materials.

Acceptance of the report does not mean that the content of the

report has been accepted by the court. In support of his contention,

Mr. Lodh, learned counsel has relied on a decision of the Gauhati

High Court in Jogendra Chandra Shil vs. Anukul Chandra Shil

and Ors., reported in 2004 (3) GLT 696. In that decision, it has

been observed that without examination of the Survey

Commissioner, no deficiency or discrepancy in his report can be

made out by the party opposing the Survey Commissioner‟s report.

[9] Having appreciated the submission of the learned counsel

appearing for the parties and scrutinized the records, this court finds

that the order by which the Survey Commissioner was appointed is

to a greater extent irregular, as no direction was issued on the

parties to appear during the survey work in compliance of the Order

XXVI, Rule 18 of the CPC, but such irregularity is not fatal. It

appears that the defendant did not raise any objection for non-

compliance of the said provision. Mr. Das, learned counsel appearing

for the petitioner has candidly submitted that the defendant was

present during the survey work but the Survey Commissioner did

not ask them anything and filed the report. In view of that, the said

irregularity cannot be used for purpose of interfering the impugned

order. Moreover, it appears that by the objection filed by the

defendant, the Civil Judge was not persuaded to allow the defendant

cross-examine the Survey Commissioner. This court, therefore, does

not find any basis to interfere with the impugned judgment and

hence, this petition stands dismissed.

There shall be no order as to costs.

Send down the LCRs forthwith.

JUDGE

Sujay