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2000 DIGILAW 628 (KER)

Varghese v. Shameema

2000-11-27

S.MARIMUTHU

body2000
ORDER S. Marimuthu, J. 1. This Civil Revision Petition is directed against the order in I.A.No. 317 of 1999 in O.S.No.28 of 1997 on the file of the Munsiff-Magistrate, Mananthavady. The suit was filed by the respondent against the revision petitioners-defendants for recovery of possession of plaint B schedule property on the strength of title. Plant B schedule property is a very small extent having a measurement of east-west 5 feet and north-west 132 feet. On the other hand, the contention of the revision petitioners would be that the suit property is included in their title deCode of Civil Procedure Code , 1908 -eds. When there are such rival contentions, a commissioner was appointed for identifying the properties. The commissioner has filed the report. Now the contentions raised on behalf of the revision petitioners would be that the Commissioner has not properly identified plaint B schedule property and therefore, an enquiry was sought for under sub-rule (2) of R.10 of Order XXVI C.P.C. Accordingly, an enquiry was conducted. The Commissioner and other witnesses were examined exhibits were marked and finally the impugned order was passed by the learned Munsiff under sub-rule (3) of R.10 O.26 C.P.C. that the court is satisfied with the report and plan. 2. Now, the arguments advanced by the learned counsel for the respondents would be that in view of the principles laid down by this court in 1996 (1) KLT 162 (Kanaran Nair v. Madhavan Nair and Mahamood v. Ali Hajee (1993 (3) KLT220) the impugned order cannot be questioned under S.115 C.P.C. In other words, the contention of the learned counsel for the respondents would be that the C.R.P. itself is not maintainable. In view of the above submission of the learned counsel for the respondents the principle laid down in the above two decisions of this court can be extracted hereunder. In 1996 (1) KLT162, the principle laid down is as follows:- "The court can, in spite of the present nature of the order, at subsequent stage modify or alter it. When the suit reaches final stage the court may perhaps get a better opportunity to decide whether the present report of the Commisioner can be acted upon. There is nothing which inhibits the court from doing so at a later stage. In this context, reference can be made to Order XXVI R.10 of the Code. When the suit reaches final stage the court may perhaps get a better opportunity to decide whether the present report of the Commisioner can be acted upon. There is nothing which inhibits the court from doing so at a later stage. In this context, reference can be made to Order XXVI R.10 of the Code. It shows that report of the commissioner shall be evidence in the suit and shall form part of the record. But the court is empowered to allow the parties to examine the commissioner touching any of the matters referred to him or mentioned in his report or as to the manner in which he has conducted the investigation. Sub-Rule (3) provides that if the court is dissatisfied with the proceedings adopted by the commissioner the court can direct further enquiry to be made. Power of the court conferred by the sub-rule seems to be very wide by using the words "where court is for any reason dissatisfied" the court can direct further enquiry in such manner as the court "shall think fit". Utility of the commission report is that the same can be used as evidence in the case. It is, therefore, subject to all the 'checks to which any other item of evidence is subject in law. The above discussion leads to the position that there is scope for raising contentions at all the subsequent stages for satisfying the court that the report of the commissioner cannot be relied on. The impugned order is only interlocutory in nature and nothing contained in it would trammel the Trial Court from taking a different view if otherwise satisfied at a subsequent stage. Parties are entitled to use other evidence including materials elicited through examination of the commissioner as a witness for satisfying the court that findings in the report are faulty." The facts of the case in the above said decision would go to show that enquiry under O.26, sub-rule (2)of R.10 C.P.C. was not conducted. Therefore, the Bench has taken the view that any order passed on the commissioner's report and plan is only interlocutory in nature and therefore a revision shall not lie and the parties are at liberty to adduce evidence including the examination of the commissioner to satisfy the court that the findings recorded by commissioner are faulty. Therefore, the Bench has taken the view that any order passed on the commissioner's report and plan is only interlocutory in nature and therefore a revision shall not lie and the parties are at liberty to adduce evidence including the examination of the commissioner to satisfy the court that the findings recorded by commissioner are faulty. Following that decision, this court in Mahmood's Case ( 1999 (3) KLT 220 ) has held thus:- "By rejecting the prayer for remitting the Commission Report to the Commissioner, there was no final adjudication of any right of the party. The party has a further right and opportunity to challenge the order in the same proceedings at a later stage as provided in sub-rr(2) and (3) of O.26, R.10. At a later stage after considering the entire evidence in the matter let in by the parties, the Court can have a different opinion regarding the Commission Report and there is no prohibition for entering a different finding at a later stage. If the petitioner can establish during trial that the Commission Report cannot be relied on and it has to be remitted to the Commissioner, then sub-r.(3) of O.26 R.10 permits the Court to do so. Thus the party has got a more effective remedy provided under the Code at a later stage in the same proceedings and the order being only interlocutory in nature without finally adjudicating the matter, it cannot be said that there was any failure of justice". The view taken by this Court in the above decision is that a revision shall not lie when it is not a final order. In that case also no enquiry was conducted under sub-rule (2) of R.10 of O.26 C.P.C. 3. From the above two decisions, it is so clear that no detailed enquiry has been conducted under sub-rule (2) of R.10 of O.26 C.P.C. and consequently no final order was passed under sub-rule (3) of R.10 of O.26. But in the instant case before me, the impugned order was passed after conducting an enquiry under sub-rule (2) of R.10 of O.26 C.P.C. Therefore, I am of the view that it is a final order and a revision will lie under S.115 C.P.C. 4. Now, let me look into the merits of the order whether it can be sustained or not. Now, let me look into the merits of the order whether it can be sustained or not. The evidence of the commissioner examined as C. W. 1 is not worthwhile because what he has stated in his chief examination in fact are contradicted in the cross examination. Therefore, regarding the Theodolite survey measurement, a clear answer is not available in the evidence of the commissioner. He has generally spoken that a theodolite survey measurement is not possible. The petitioners have examined one witness as P.W.1, who is a retired Additional Director of Surveys. No doubt, he has spoken the mode of conducting the theodolite survey, chain survey etc. According to him, a theodolite survey can be conducted in busy area also. He has also spoken the difference between top survey and chain survey measurements. In the cross examination, one of his answers would be that when stones are no available in the properties to be measured, theodolite survey can be conducted and only by theodolite survey, the correct extent can be found out. The measurement noted in Ext.C1, according to him, is not correct. In yet another place of his cross examination, it is seen, for larger area, theodolite survey is adopted and in small area chain survey is adopted. 5. On examining the entire evidence of P.W.1, I feel that it is also not useful. The Commissioner has deposed that theodolite survey is not practical in this case. So that was not adopted by the Superintendent of Survey who accompanied him. But that Superintendent was not examined. In short, on examination of the evidence of P.W.1, and the commissioner, it is not possible to conclude whether theodolite survey can be adopted in this area or not. In that situation, I feel that the Superintendent of Survey, who accompanied the commissioner can be examined whether theodolite survey can be adopted in this property and if adopted whether it will show the correct extent of the property than the chain survey. In these circumstances, I feel that the matter can be remanded back to the Trial Court to examine the Superintendent of Survey who accompanied the Commissioner and on the basis of the evidence of the Superintendent, the court can decide whether theodolite survey can be adopted in measuring the suit property and thereafter the suit can be disposed of.