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2010 DIGILAW 1423 (CAL)

Sk. Moktar v. Sk. Easin

2010-12-09

PRASENJIT MANDAL

body2010
JUDGMENT Prasenjit Mandal, J. 1. THIS application is at the instance of the defendants and is directed against the order dated July 19, 2006 passed by the learned Civil Judge (Junior Division), Additional Court, Jangipur in Title Suit No.12 of 1999 thereby accepting the pleader commissioner's report filed in the said suit. 2. THE short fact is that the plaintiff/opposite party herein filed a suit being the Title Suit No. 12 of 1999 praying for declaration of title and permanent injunction against the defendants in respect of the property in suit, as described in the schedule of the plaint. The defendants are contesting the said suit. The plaintiff filed an application for investigation of the suit property in view of the contentions raised by the defendants relating to identity of the suit property. Accordingly, on the prayer of the plaintiff, a survey passed lawyer was appointed for making investigation on the points as appearing at page no.29 of the application as annexure 'B'. The learned commissioner held inspection upon issuing notices upon both the parties and then, on completion of the investigation, he submitted reports. Then the petitioners raised objection against the said reports. Thereafter the learned commissioner was examined in the Court and he explained on the queries made by the petitioners. Upon due consideration of the materials on record, the learned Trial Judge accepted the report filed by the learned commissioner. Being aggrieved, the defendants have preferred this application. 3. NOW, the point for consideration is whether the learned Trial Judge is justified in accepting the reports filed by the petitioner. 4. UPON hearing the learned counsel for the parties and on going through the record, I find that the above facts are more less not disputed. The contention of the petitioners is that the investigation reports were submitted by the learned commissioner ex parte without issuing any notice upon all the opposite parties. It is also contended that the learned commissioner did not find fixed points and so his reports basing on the corner of the buildings as fixed points, are totally wrong. Moreover, the reports of the learned commissioner were submitted by him by making table works without going to the spot. So, the reports should be rejected and a fresh commission was to be issued. Moreover, the reports of the learned commissioner were submitted by him by making table works without going to the spot. So, the reports should be rejected and a fresh commission was to be issued. The learned commissioner has clearly stated in his deposition that before going to the locale, he issued notices upon the opposite parties and those notices have been made parts of the record. It is also the evidence of the learned commissioner that after preparation of the field works, when he asked the petitioners to sign the field works, they did not sign. The learned commissioner has also stated during his deposition that as the area is a deeply congested one and since the fixed points could not be ascertained, he took the fixed points on the basis of the corners of the buildings. So far as the service of notice, I find that there are as many as 50 defendants and as such, it is not possible to serve notices upon all the defendants personally. All are residing within the P.S. Suti and Samserganj in maffashal area, so, persons are, generally, known one another and there is scope for connections/talks amongst themselves. Moreover, all the defendants are not contesting the suit. Only the defendant no.1 to 3 are the contesting defendants and a notice was served upon them by the learned commissioner before holding the investigation. 5. IN such a situation, in consideration of the number of defendants in the suit and the above facts, I am of the view that it is not possible for the learned commissioner to serve notices upon all the defendants personally and therefore, if the other defendants who are not contesting the suit, raise any objection, the contesting defendants cannot take their stand on their behalf without proper instruction from them. Therefore, when the contesting the defendants have been served, I think, compliance of service of notice has been performed for the purpose of investigation of the property in suit. So, the contention of the petitioners in this regard cannot be accepted. 6. SO far as determining of the fixed points, the learned commissioner has taken the fixed points on the plot no.825 and 827 on the South-Western corner of the plots in suit. So, the contention of the petitioners in this regard cannot be accepted. 6. SO far as determining of the fixed points, the learned commissioner has taken the fixed points on the plot no.825 and 827 on the South-Western corner of the plots in suit. The learned commissioner has stated in clear terms that the area is a thickly populated one and as such, he had to take the corner points and the road as the fixed points for identification of the plots of the suit. Under the circumstances, measurement of the plots by using general method was not possible. The defendants have clearly stated that they are not present at the time of holding investigation at the spot. SO, their submission that proper fixed points were not taken, cannot be accepted. The reports of the learned commissioner that though the contesting defendants were present, they did not sign on the field works should be accepted because he was appointed by the Court to act as an independent person and the petitioners could not show that this learned commissioner had any grudge or enmity against them. It can well be decided that the learned commissioner was held inspection in the presence of the defendants and that they did not sign in the field book prepared by the learned commissioner. In such circumstances, it can well be held that the defendants/petitioners herein could not show any better fixed points than those corners of the adjacent buildings and the adjacent roads. Therefore, I am of the view that the contentions raised by the defendants on those two matters, i.e., non-service of notices for holding commissioner's works and the story that fixed points were not properly determined, cannot be accepted. In short, I am of the view that the petitioners have failed to show any wrong or irregularity in the matter of preparation of the reports. There is no ground for rejection of the reports. Therefore, I am of the view that the learned Trial Judge was justified in accepting the report of the learned commissioner. 7. SO, there is nothing to interfere with the impugned order. Accordingly, this application is dismissed. Considering the circumstances, there will be no order as to costs. 8. URGENT xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking. 7. SO, there is nothing to interfere with the impugned order. Accordingly, this application is dismissed. Considering the circumstances, there will be no order as to costs. 8. URGENT xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking. (Prasenjit Mandal, J.) Later: At the time of passing the judgment, Mr. Midya, learned Advocate appearing for the petitioners, submits that the suit has been dismissed for default. Since such submission is being made after completion of hearing of argument over the application, there is no bar to deliver judgment. The judgment is accordingly delivered and the information slip in support of the submission filed by the petitioners be kept with the record.