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2000 DIGILAW 420 (CAL)

MANABESH CHANDRA MUKHERJEE v. DIPAK KUMAR SINGHA

2000-08-18

RANJAN KUMAR MAZUMDER

body2000
R. K. MAZUMDER, J. ( 1 ) -THE instant Civil revisional application under section 115 of the Code of Civil Procedure is at the instance of the plaintiff-petitioners 1 and 2 and is directed against the Order No. 108 dated 7. 9. 93 passed by the learned Munsif, Second Court, Katwa in Title Suit No. 59 of 1980. ( 2 ) THE case of the plaintiff-petitioners was in brief that they filed a suit being T. S. No. 59 of 1980 before the learned Munsif, Second Court, Katwa praying inter alia for declaration that they were the absolute owners in respect of the suit property mentioned in Schedule 'ga' to the plaint and for permanent injunction restraining the defendant-O. Ps from interfering with the peaceful possession and enjoyment of the said property. In the said suit the plaintiff-petitioners also averred that the 'ka' Schedule property, which was a drain (Nallah), was also part and parcel of the 'ga' Schedule property. It was also alleged by them in the said suit that the defendant-O. Ps raised a brick built wall encroaching on the 'ka' Schedule property. It was the further case of the plaintiff-petitioners that for the purpose of proper adjudication of the said suit they filed a petition before the learned Court below under Order 26 Rule 9 of the CPC for elucidation of certain points in controversy between the parties. Such a prayer was allowed by the learned trial Court below and Shri Siddheswar Hazra, a Surveyor passed lawyer, was appointed as the Commissioner for holding local investigation in respect of the suit property. After holding the said local investigation, Shri Hazra duly submitted his Report, Case-Map and Field Book etc. before the learned trial Court below on 21. 9. 91. Unfortunately the defendant-O. Ps raised objections in regard to acceptance of the said Report on various grounds. After due hearing of the matter and also after examination of the learned Advocate Commissioner, the learned Court below refused to accept such a Report etc. on various grounds mentioned in the impugned order dated 7. 9. 93. Hence the instant Civil revisional application by the plaintiff-petitioners for redressal of their grievances. ( 3 ) I have had the opportunity of hearing learned counsels for both the parties at length in the matter. on various grounds mentioned in the impugned order dated 7. 9. 93. Hence the instant Civil revisional application by the plaintiff-petitioners for redressal of their grievances. ( 3 ) I have had the opportunity of hearing learned counsels for both the parties at length in the matter. ( 4 ) THE only question requiring consideration in this hearing was whether the impugned order passed by the learned Court below on 7. 9. 93 should be set aside as prayed for by the plaintiff-petitioners or not. ( 5 ) AT the time of hearing, learned counsel for the plaintiff-petitioners vehemently submitted that the learned Court below acted illegally and with material irregularity in refusing to accept the Report, Field Book and Sketch Map submitted by the learned Advocate Commissioner after due investigation and survey. In that connection, it was submitted by him that the points incorporated in the said Report submitted by the learned Advocate Commissioner were sufficient enough to decide the points in controversy between the parties. In that view of the matter, it was submitted by him that the Report, Field Book and Sketch Map submitted by the learned Advocate Commissioner should be accepted and that no fresh local investigation of the suit property should be held as ordered by the learned Court below since it will consume unnecessarily further time. ( 6 ) LEARNED counsel for the defendant-O. Ps submitted on the other hand, that there were glaring defects in the Report submitted by the learned Advocate Commissioner and hence it was hardly possible to resolve the disputes between the parties based on the information furnished in the Report. In that connection it was submitted by him that although the learned Advocate Commissioner selected four permanent land marks from plot Nos. 3925, 4089, 4087 and 4080, the Field Book did not reveal that he verified the fixities of the permanent land marks with reference to independent points. In other words, the Field Book of the learned Advocate Commissioner did not show verification of such points with reference to permanent land marks. He further submitted that unless the permanent land marks and their fixities were correct, the survey work conducted by the learned Advocate Commissioner was bound to be faulty and erroneous. In other words, the Field Book of the learned Advocate Commissioner did not show verification of such points with reference to permanent land marks. He further submitted that unless the permanent land marks and their fixities were correct, the survey work conducted by the learned Advocate Commissioner was bound to be faulty and erroneous. It was again submitted by him that there was no mention in the learned Advocate Commissioner's Report as to whether as per survey the 'ka' Schedule drain (nallah) appertained to 'ga' Schedule land, which was the bone of contention between the parties. Again it was submitted by him that the finding of the learned Advocate Commissioner that chain lines 2 to 4 and chain lines 1 to 3 passed through the buildings as shown in the Case Map was an impossibility. He, therefore, urged upon this Court for upholding the impugned order dated 7. 9. 93 by which the order was passed for fresh local investigation of the suit property. ( 7 ) IT appears from record that in course of hearing of the written objection filed by the defendants-O. Ps on the question of acceptance or otherwise of the Report, Field Book and Case Map, the learned advocate Commissioner, who held the investigation and submitted the Report etc. , was examined by both the parties. It is true that in course of such examinaton, the learned advocate Commissioner categorically stated that he did not use Compass while holding the survey of the disputed property. Be that as it may, it further appears from record that learned advocate Commissioner selected four permanent land marks from plot Nos. 3925, 4089, 4087 and 4080, but the Field Book submitted by him did not disclose that he verified the fixities as required under the law. On this point the learned Court below observed very specifically that the Field Book of the learned advocate Commissioner did not show the points with reference to which the permanent land marks were verified. It has also been observed by the learned Court below that doubt crept in the mind of the Court with regard to the fixities of the permanent land marks and according to him a survey work done by a learned Advocate Commissioner must be faulty unless the permanent land marks and their fixities were correct. It has also been observed by the learned Court below that doubt crept in the mind of the Court with regard to the fixities of the permanent land marks and according to him a survey work done by a learned Advocate Commissioner must be faulty unless the permanent land marks and their fixities were correct. Again it appears from the impugned order that the learned Advocate Commissioner failed to ascertain after survey as to whether 'ka' Schedule drain (nallah) appertained to 'ga' Schedule property or not. It appears that he merely answered this question in the affirmative based on purchase-deed only instead of doing survey-work. Such a course of action cannot certainly be approved. Again it appears from the impugned order that the learned Court below found fault with the survey work done by the learned Advocate Commissioner inasmuch as according to the learned Court below chain line 2 to 4 and chain line 1 to 3 could not pass through buildings as shown in the Case Map. Finally the learned Court below concluded that the survey work done by the learned Advocate Commissioner was unscientific, improper and imaginary. Hence the said Court refused to accept the learned Advocate Commissioner's report, Field Book etc. and ordered a fresh local investigation. I do not find anything wrong with the said order of the learned Court below dated 7. 9. 93. Upon a consideration of the facts and circumstances of the case, and with an eye to the entire materials on record, I am therefore, of the clear view that the impugned order does not suffer from any manifest error of procedure, or any other illegality. Again, it is not a case where if the impugned order is allowed to stand, it would occasion a failure of justice or cause irreparable injury to any of the parties. No interference in revision is, therefore, required in this case. The instant Civil revisional application is, therefore, dismissed. An interim order of stay as granted by this Court is hereby vacated. Learned Court below is directed to proceed with the suit early. There will be no order as to costs. Later : urgent xerox certified copy of this judgment, if applied for, be given at an early date. Application dismissed.