Tripura High Court
Smt. Sarmistha Basak vs Smt. Dhanadebi Jamatia on 16 August, 2023
HIGH COURT OF TRIPURA
AGARTALA
RSA 37 OF 2022
1. Smt. Sarmistha Basak, aged-37,
D/o Lt. Ramesh Chandra Basak.
2. Smt. Sarmila Basak, aged-40,
D/o Lt. Ramesh Chandra Basak,
Both are residents of Ujan Abhoynagar, Agartala,
P.O. Abhoynagar, P.S. East Agartala,
District-West Tripura.
...Plaintiff-appellants
Vrs.
1. Smt. Dhanadebi Jamatia,
W/o Sri Benoy Kumar Jamatia.
2. Smt. Jharna Jamatia, W/o Sri Laxmibir Jamatia.
3. Smt. Sumita Debbarma, W/o Sri Kartik Debbarma.
4. Smt. Kusum Kumari Roy, W/o Lt. Anil Kumar Roy.
5. Sri Saibal Roy, S/o Lt. Anil Kumar Roy.
6. Sri Prabal Roy, S/o Lt. Anil kumar Roy,
All are residents of Ujan Abhoynagar, Agartala,
P.O. Abhoynagar, P.S. East Agartala,
District-West Tripura.
...Defendant-respondents.
Present:
For the appellant(s) : Mr. D.R.Chowdhury, Sr. Advocate.
Mr. S. Sarkar, Advocate.
For the respondent(s) : Mr. T.K.Deb, Advocate.
Date of hearing & : 16.08.2023
delivery of judgment
and order
Whether fit for : YES
reporting
HON'BLE MR.JUSTICE ARINDAM LODH
Judgment & Order (Oral)
This is a second appeal under Section 100 of the Civil Procedure
Code,1908 [for short, the "Code"] filed by the plaintiff-appellants against the
Judgment and Decree dated 09.03.2022, passed by the learned District Judge,
West Tripura, Agartala in connection with Case No. TA 63/2019, whereby
and whereunder the appellate court had affirmed the judgment & decree dated
30.09.2019, in connection with Case No. T.S. 54 of 2014 passed by learned
Civil Judge (Jr. Division), Court No.7, Agartala, West Tripura.
2. Briefly stated, the present appellants, who were the original
plaintiffs had filed a suit for declaration of right, title, interest and recovery of
khas possession of the suit land described in the schedule of the plaint. On
being summoned, the defendants appeared and contested the suit by way of
filing written statement. Issues were framed, evidences were recorded and
thereafter having heard the learned counsel appearing for the parties to the lis,
learned Civil Judge (Jr. Division), Court No.7, Agartala, West Tripura had
dismissed the suit on the ground that the plaintiffs had failed to establish their
case that the defendants had dispossessed them from the land described in the
schedule of the plaint.
3. Being aggrieved, the plaintiffs had preferred first appeal before
the court of learned District Judge, West Tripura, Agartala. The learned
District Judge having gone through the records and after being heard the
arguments advanced by learned counsel appearing for the contesting parties,
dismissed the appeal vide judgment and decree dated 09.03.2022 and thereby
confirmed the judgment and decree passed by the learned Civil Judge (Jr.
Division), Court No.7, Agartala, West Tripura.
4. Feeling aggrieved, the plaintiffs have filed the present second
appeal against the defendants/respondents and at the admissions stage, this
court had formulated following substantial question of law:
"Whether the Judgment and Decree passed by the learned
Courts below suffers from perversity?"
5. Heard Mr. D. R. Chowdhury, learned senior counsel assisted by
Mr. S. Sarkar, learned counsel appearing for the plaintiff-appellants. Also
heard Mr. T.K.Deb, learned counsel appearing for the defendant-respondents.
6. At the very outset, this court had put a question to Mr.
Chowdhury, learned senior counsel to show the findings of the courts below
so as to justify that the findings are perverse. Referring to Order 26, Rule 10-A
of the Code, Mr. Chowdhury, learned senior counsel has submitted that in this
case, the courts below ought to have passed an order of appointment of a
Survey Commissioner to measure and identify the disputed land in question,
which is mandatory in law.
Rule 10-A of the Code, reads as under:
"Rule 10-A . Commission of scientific Investigation-- (1)
Where any question arising in a suit involves any scientific
investigation which cannot, in the opinion of the Court, be
conveniently conducted before the Court, the Court may, if it thinks it
necessary or expedient in the interests of justice so to do, issue a
commission to such person as it thinks fit, directing him to inquire into
such question and report thereon to the Court.
(2) The provisions of Rule 10 of this Order shall, as far as
may be, apply to relation to a Commissioner appointed under this rule,
as they apply in relation to a Commissioner appointed under Rule 9."
7. In my opinion, nature of dispute arose between the parties to the
present suit would not be governed by Rule 10-A of the Code and it would be
governed by Order 26, Rule 9 of the Code, which reads as under:
"Rule 9 - Commissions to make local investigations.--
In any suit in which the Court deems a local investigation to
be requisite or proper for the purpose of elucidating any matter in
dispute, or of ascertaining the market-value of any property, or the
amount of any mesne profits or damages or annual net profits, the
Court may issue a commission to such person as it thinks fit directing
him to make such investigation and to report thereon to the Court:
Provided that, where the State Government has made rules as
to the persons to whom such commission shall be issued, the Court
shall be bound by such rules."
8. On plain reading of Rule 9 of the Code, it is clear that there is no
mandate for any court to pass an order suo moto appointing a Commissioner
for local investigation. It is the discretion given to the court under the Code,
and in a particular circumstance, the court can exercise such discretion for the
purpose of elucidating any matter in dispute.
9. After perusal of the documents and other relevant materials
placed by the parties, if the court finds it difficult to identify the land in
question or otherwise, in the context of a case, then, it can exercise its
discretionary power for proper adjudication of the disputes between the rival
parties.
10. So, the submission of learned senior counsel that it is the mandate
of law to pass an order of local investigation by an expert in this field, is
difficult to consume and accordingly, it is repelled.
11. There may be yet another situation, when either of the contesting
parties may take the recourse of Order 26, Rule 9 of the Code to substantiate
their claim in respect of identification of the disputed land or otherwise in the
context of a case, through the process of the court. In that case, the court on
consideration of the merits of such claim can appoint a Commissioner having
expertise in the field to inspect the land and investigate the matter on the spot
in terms of writs/directions of the court.
12. The object of local inspection is not to collect evidence which can
be taken in court, but, to obtain evidence, which due to its peculiar nature, can
only be had at the spot. It also to be made clear that the report of the
Commissioner is not absolute and the same can be confronted by the party not
satisfied with the report. The Hon'ble Supreme Court in Zarif Ahmad Vrs.
Mohd. Farooq, reported in (2015) 13 SCC 673 held that--where local
investigation is ordered by a court through a local Commissioner but the
evidence adduced by a party is reliable and cogent, then the court can ignore
the Commissioner's report.
13. In the instant case, the plaintiffs are to prove their own case. If
the plaintiffs are not satisfied with the averments made in the written
statement, they could easily file an application for local investigation by an
expert and urge before the court to pass an order for local investigation.
Neither before the trial court nor before the first appellate court the plaintiffs
thought it necessary at all to file an application for appointing an expert for
local investigation of the disputed land in question described in the schedule
of the plaint.
14. In view of this, on perusal of the judgments of both the courts
below, I do not find any perversity in the findings and accordingly, the instant
appeal stands dismissed.
JUDGE
SANJAY GHOSH Digitally signed by SANJAY GHOSH
Date: 2023.08.18 17:06:37 +05'30'
