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2009 DIGILAW 679 (CAL)

Shyamal Chakraborty v. Ganesh Chandra Sanyal

2009-08-28

Md.Abdul Ghani

body2009
JUDGMENT 1. THE present application under Article 227 of the Constitution of India is at the instance of the defendants of Title Suit No. 192 of 2004 and is directed against the order dated 27.5.2008, passed by the learned Civil Judge (Junior Division), 1st Court, Krishnagar in aforesaid T.S. No. 192 of 2004. 2. FROM the materials of record it could be seen that the present O.Ps. as plaintiffs of the Title Suit No. 192 of 2004 filed an application under Order 26 Rule 9 read with section 151 of CPC before the learned Court below praying for appointment of a trained Advocate Commissioner for holding local investigation in respect of the specific demarcation of the suit plot being No. 3712/4422. The present petitioners filed objection against the said application. Thereafter, learned Court below upon hearing the learned lawyers for the parties concerned was pleased to allow the said application and accordingly Advocate Sunit Kumar Biswas was appointed as Advocate Commissioner for holding local investigation as per points indicated in the application in question. Pursuant to the said order passed by the learned Court below learned Advocate Commissioner upon service of notice to the parties concerned held local investigation and subsequently submitted his report before the learned Court below. Against the said report the present petitioner filed written objection contending that the some portion of the suit plot identified by the learned Advocate Commissioner as boundary wall is absolutely not a boundary wall at all and that learned Advocate Commissioner while holding the investigation ascertained the total quantum of the suit land as 34.83 satak instead of 38 satak as shown in the R.S. Record-of-Rights. According to the petitioners the learned Advocate Commissioner conducted the commission work in violation of the principles of the survey rules and procedure and ignoring the appropriate fixed point as also without proper super-imposition of the matters involved in the case. 3. BE that as it may, learned Court below upon hearing the learned advocates of the parties concerned and also having considered the report along with sketch map submitted by the learned Advocate Commissioner was pleased to accept the report ignoring the objection raised from the end of the present petitioners by passing the impugned order. 4. BEING aggrieved by and dissatisfied with the impugned order dated 27.5.2008, the petitioners have come up before this Court' praying for setting-aside the same. 4. BEING aggrieved by and dissatisfied with the impugned order dated 27.5.2008, the petitioners have come up before this Court' praying for setting-aside the same. The only point for consideration is whether the order impugned suffers from any legal infirmity and impropriety or whether the same needs any interference by this Court. 5. THE learned Counsel appearing for the petitioners while making submissions drew this Court's attention to the contents of the impugned order as also some other materials on record including the Commissioner's report and strongly submitted that the learned Advocate Commissioner without applying proper judicial mind and ignoring the principles of survey procedure held investigation and submitted report which is not only unacceptable and warrantable but also the same is contrary to the existing survey procedure. He has further submitted that learned Court below ignoring the principles of natural justice and equity improperly accepted the Commissioner's report causing miscarriage of justice and as such the impugned order is liable to be set aside and the Court below should be directed for arranging local investigation afresh. 6. ON the other hand, learned Counsel appearing for the O.Ps. referring to the contents of the Commissioner's report as also some other important materials on record including the copy of the plaint emphatically argued and submitted that the learned Court below committed no mistake or error in accepting the Commissioner's report inasmuch as learned Advocate Commissioner held local investigation properly and accordingly the order impugned needs no interference by this Court. Having heard the learned Counsels for the parties concerned and also on perusal of the materials on record including the Survey Commissioner's report, sketch map thereof, it could be seen that learned Advocate Commissioner in course of investigation arrived at a decision that total area of the suit property is 34.83 satak instead of 38 satak as recorded in R.S. Khatian. Further it would appear that fixed point taken by the learned Advocate, Commissioner is not appropriate and accordingly super-imposition cannot be said to have been properly dealt with. Further, it transpires from the sketch map as also from the report of the Advocate Commissioner that there is no existence of boundary wall and thus the report submitted by the Advocate Commissioner seems to be vague and improper. 7. Further, it transpires from the sketch map as also from the report of the Advocate Commissioner that there is no existence of boundary wall and thus the report submitted by the Advocate Commissioner seems to be vague and improper. 7. THEREFORE, having heard the learned Counsels for the parties concerned and also on perusal of the materials on record this Court is pursuaded to say that the learned Commissioner while conducting the investigation work in respect of the suit plot failed to conduct the same taking the appropriate fixed point as also super-imposition causing non existence of appropriate boundary J wall. Thus the report suffers from impropriety, vagueness as well as legal' 'J infirmity. In the circumstances it may be said that the learned Court below committed error and mistake in accepting the learned Advocate Commissioner's report and as such the impugned order dated 27.5.2008, cannot be sustainable in the eye and estimation of law and the same is liable to be set aside. In the result, the order dated 27.5.2008 stands set aside and the matter is remanded back with direction upon the Court below to pass necessary order for holding the investigation afresh as per points indicated in the petition under Order 26 Rule 9 read with section 151 of CPC filed on behalf of the O.Ps. plaintiffs, at an earliest opportunity with further direction to dispose of the suit as expeditiously as possible. With the above observation the application under Article 227 of the Constitution of India is disposed of. 8. HOWEVER, 1 make no order as to costs. Urgent xerox certified copy be given to the parties expeditiously, if applied for.