1. Heard Mr. RK. Deka, the learned counsel appearing for the petitioners (defendants). Also heard the learned counsel Ms. P. Chakraborty, appearing for the respondents (plaintiffs). 2. The T.S. No.40/2004 was filed to seek declaration of right, title and interest of the plaintiffs over the land mentioned in the 1st Schedule to the plaint. The predecessor of the plaintiffs Kala Raja Choudhury purchased this land measuring 43 bigha, 13 katha from Kamini Mohan Roy vide two Regd. Sale Deed Nos.3017 and 3018 dated 12.4.1978. The pleaded case of the plaintiffs is that the principal defendants on or after 14.1.2000 started encroachment on northern portion of the 1st Schedule land and eventually they illegally took possession of plaintiffs' land measuring 10 Nols in breadth and 40-50 Nols in length. Therefore, recovery of dispossessed land was sought after preparation of Saham report. 3. A preliminary decree was passed in the suit on 27.2.2006 (Annexure 1), where the court issued the following direction : “…………………………………………… It is worth mentioning here that plaintiffs are claiming their title in respect of g 43 B, 13 K of land in respect of 1st Schedule land. Similarly the purchase land of answering defendants measuring 29 B, 2 K is shown as 2nd Schedule land. The alleged encroachment of 10 to 50 noils by the answering defendants can not be ascertained without proper survey. The suit being a partition suit, that aspect of the matter be well solved at the time of preparation of sham through survey. We already observed that the shares of the contesting parties is well described in the 1st land 2nd Schedule land. So, there should not be any impediment to pass a preliminary decree declaring plaintiff's right, title, interest over the 1st Schedule land. 4. In pursuant to the above preliminary decree, the Land and Revenue Officer, Katlicherra, Hailakandi along with other Revenue staff made a survey of the Schedule land on 24.3.2009 and 3.4.2009 and eventually a Saham Report was prepared on 5.5.2009 (Annexure 2). This Commissioner's report was presented to the trial court but the defendants objected thereto by contending that the same was not prepared in accordance with the preliminary decree passed by the court. This Commissioner's report was presented to the trial court but the defendants objected thereto by contending that the same was not prepared in accordance with the preliminary decree passed by the court. The defendants contended that a collusive report to give unfair advantage to the plaintiffs was prepared without ascertaining the encroachment of the 1st Schedule land made by the defendants and accordingly it was prayed that the court should reject the Commissioner's report as the same will dispossess the defendants' from their homestead land. 5. The learned Civil Judge (Sr. Division), Hailakandi on 23.2.2010 (Annexure 4), rejected the plaintiffs' objection to the Saham Report by observing that the aggrieved party should have preferred Appeal against the preliminary decree passed on 27.2.2006 (Annexure 1), instead of challenging the Commissioner's report when it was submitted for consideration to the court. 6.1 Assailing the legality of the impugned order, Mr. P.K. Deka, the learned counsel submits that the Commissioner's report must be consistent with the preliminary decree passed by the court and in the instant case, the Revenue Staff failed to give any report on the encroachment of 10 to 50 noils of the 1st Schedule land by the defendants, although this fact was specifically incorporated in the court's preliminary decree. 6.2 The learned counsel also submits that while preparing the report under order 26, rule 14 of the CPC, the Commissioner is required to distinguish the share of each party in accordance with the direction given by the court and under sub-rule (2) of rule 14, the court is empowered to either accept or reject the Commissioner's report after considering the objection of the parties. If the report is found to be unacceptable, the court may reject the report and/or issue a new Commission under sub-rule (3) of rule 14 of order 26 of the CPC. Mr. Deka argues that the court below failed to exercise its jurisdiction under this provision while considering the objection of the defendants, to the Commissioner's report. 7.1 Representing the respondents/plaintiffs, Ms. P. Chakraborty, learned counsel on the other hand submits that since the final decree is to be prepared on the basis of the Saham Report, the objection of the defendants' need not be considered at this stage and accordingly she argues that once the final decree is drawn up, the aggrieved party can approach the Appellate Court under section 97 of the CPC. 7.2 The respondents also question the maintainability of this petition under article 227 of the Constitution by contending that no case is made out for interference with the impugned order in exercise of its supervisory jurisdiction by the High Court. 8. When a preliminary decree is passed ordering local Commission to survey the disputed property, the Commissioner should make the necessary inquiry and determine the litigants' share by metes and bounds. When the report is then furnished to the court, the parties b can raise objection, under sub-rule (2) of rule 14 of order 26 of the CPC. Thereafter the court can confirm or vary the Commissioner's report and pass a decree accordingly. Option is also available to the court to issue a new Commission, when the earlier Report is not acceptable. 9. But in the instant case, the objection of the defendants to the Commissioner's report was never duly considered by the court and the objection was summarily brushed aside by observing that the defendants did not raise any objection when the suit land was surveyed by the Revenue Staff. In fact, the court held that the objection of the defendants to the Saham Report is not tenable at this stage, as the defendants had not preferred any appeal against the preliminary decree drawn up by the court on 27.2.2006. 10. The above approach indicates that the court failed to discharge its responsibility under sub-rule (2) of rule 14 of order 26 of the CPC to consider the objection of the defendants to the Saham Report and this, in my view, has resulted in a jurisdictional error. When the Subordinate Courts fail to discharge its responsibility enjoined by law, the supervisory power under article 227 of the Constitution can be exercised and it is well settled that the High Court is competent to interfere when the Subordinate Court fails to exercise its due jurisdiction - see Achutananda Baidya v. Prafullya Kumar Gay en, (1997) 5 SCC 76 and State Bank ofBikaner & Jaipur v. Om Pmkash Sharma, (2006) 5 SCC 123 . 11. It may also be noted that the petitioners/defendants are not aggrieved by the preliminary decree recorded on 27.2.2006 but all that they wanted was that the Saham Report be consistent with the direction given for the local Commission. 11. It may also be noted that the petitioners/defendants are not aggrieved by the preliminary decree recorded on 27.2.2006 but all that they wanted was that the Saham Report be consistent with the direction given for the local Commission. Therefore, the court fell into an error by not examining the objection of the defendants to the Saham Report on the ground that the defendants failed to challenge the preliminary decree, before the Appellate Court. When the petitioners are not aggrieved by the preliminary decree and desired the Saham Report to conform to the preliminary decree, the defendants can't be penalized for not challenging the preliminary. But unfortunately on this ground, the defendants' objection was not considered by the learned Trial Judge. Therefore, I am of the view that manifest injustice has been caused to the defendants by the incorrect approach of the court. 12. Considering the above facts and noticing that the court failed to exercise its vested responsibility to consider the defendants' objection against the Commissioner Report, I hold that the impugned order dated 23.2.2010 (Annexure 4), the learned Civil Judge (Sr. Division), Hailakandi is legally unsustainable and the same is accordingly quashed. Consequently the court is now directed to consider the defendants' objection on merit by taking into account whether the Commissioner's Report was consistent with the preliminary decree passed by the court on 27.2.2006. After due consideration if the Saham Report dated 5.5.2009 (Annexure 2) is found to be unacceptable, the court may order for a fresh report of the Commissioner. It is ordered accordingly. 13. With the above order, the case stands allowed to the extent indicated above. No cost. The Registry should send back the LCRs with a copy of this order to the court of the learned Civil Judge (Sr. Division), Hailakandi.