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2014 DIGILAW 591 (CAL)

Baidyanath Pal v. Uttam Manna

2014-07-04

ARINDAM SINHA

body2014
JUDGMENT : 1. Affidavit-of-service filed in Court be taken on record. 2. This application under Article 227 of the Constitution of India is directed against order dated 16th July, 2013 made by the Court of Civil Judge, Junior Division, 1st Court, Burdwan in Title Suit No.61 of 2008 whereby the application of the petitioners/plaintiffs for rejecting the Commissioner’s report was rejected. 3. Pursuant to an order for local investigation being made, the Commissioner appointed, filed a report. The Commissioner was examined. It appears from the report that to keep the field book neat and clean, the Commissioner did not note the measurement of verification of the fixed points therein. It appears from his deposition he had said it to be a fact that if the sketch map would have been drawn as per field book, then the actual position might have been revealed. He deposed further it was a fact that there is a difference of 10 ft. in respect of the case map and field book. Further if the case map was drawn according to the field book then the fencing should have shifted. He deposed further it is a fact the sketch map has not been drawn as per field book in respect of Station 4 to 4(A), 5 to 6. 4. Mr. Gazi Faruque Hossain, appearing on behalf of the petitioners submits that the report was not drawn up as per procedure. A report not drawn up on the basis of field note, which field note itself admittedly did not carry noting of the Commissioner, have contributed to the making of a report which is no report at all and should be rejected. According to him, the investigation contemplated does not appear to have been made from such a report. 5. Mr. Uttaya Roy, learned Advocate appearing on behalf of the opposite parties/defendants relies upon the decision reported in 2007(4) CHN 215 (Aparna Pal & Ors. vs. Anil Kumar Giri & Ors.) and an unreported decision (Bankim Behari Patra & Ors. vs. Surajit Patra & Ors.) dated 20th September, 2010 made in C.O. 2309 of 2010 by this Court. 5. Mr. Uttaya Roy, learned Advocate appearing on behalf of the opposite parties/defendants relies upon the decision reported in 2007(4) CHN 215 (Aparna Pal & Ors. vs. Anil Kumar Giri & Ors.) and an unreported decision (Bankim Behari Patra & Ors. vs. Surajit Patra & Ors.) dated 20th September, 2010 made in C.O. 2309 of 2010 by this Court. In the unreported decision, this Court had held “once such report is submitted by the Investigation Commissioner, the Court has no option but to accept such report and once such report is accepted, the said report together with the evidence taken by him will be a part of the record and the same will be read as evidence in the suit. However, the evidential value of the said report can be considered by the Court along with the other evidence in the suit at the time of hearing of the suit”. 6. In this case it appears the Commissioner himself has deposed that there exists some discrepancies in the making of his report. The learned Court below considered the exception taken by the petitioners and rejected it on the Commissioner’s justification of it in his examination along with a perusal of the report itself. It is, therefore, clear to this Court the learned court below considered the procedure by which the report had been made and found the report could be a good one for it to be made part of the record to be treated as a piece of evidence in the hearing of the suit. 7. When the report itself states the Commissioner had not noted measurements of verification of fixed points in the field book and thereafter he went on to depose the report was not drawn up as per field book then it is not clear as to what was the basis on which the report was drawn up. In such a situation, the report may or may not be relied on as good evidence in the hearing of the suit. However, there exists an apprehension the report was not properly drawn up that leads to the conclusion that the investigation contemplated was not properly reflected therein. Such a report cannot be sustained. 8. The learned Court below, therefore, mis-directed itself in rejecting the application of the petitioners. The impugned order is set aside. However, there exists an apprehension the report was not properly drawn up that leads to the conclusion that the investigation contemplated was not properly reflected therein. Such a report cannot be sustained. 8. The learned Court below, therefore, mis-directed itself in rejecting the application of the petitioners. The impugned order is set aside. The Commissioner is directed to undertake a fresh Commission on the points directed and submit his report to the learned Court below within a period of four weeks from the date of communication of this order. 9. The application stands allowed. 10. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.