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2016 DIGILAW 1164 (ALL)

Surya Prakash Tiwari v. Shanti Devi

2016-04-01

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri Narendra Bhushan Nigam, for the petitioners. 2. This petition has been filed, for setting aside the orders of Additional Civil Judge (Jr. Division) dated 01.12.2014, rejecting survey report submitted by Court Amin in the suit and Incharge District Judge, dated 14.12.2015, dismissing revision of the petitioners against the aforesaid order. 3. Mata Harakh alias Mata Harash (now represented by the petitioners) filed a suit (registered as Original Suit No. 99 of 1966) for possession over sub-plots 48 and 49 of abadi plot 1408 of village Kotwa, pargana Jhunsi, district Allahabad. It has been stated in plaint that Kamta son of Durga Prasad was owner of the land in dispute, in which in sub-plot 48 his house etc. was existing and sub-plot 49 was occupied as appurtenant land by him. Kamta was inherited by his adopted son Shri Kant, who executed a sale deed dated 21.10.1965 of the disputed land in favour of the plaintiff and handed over possession to him over it. The plaintiff was residing in Bombay in connection of his service, from where he retired in last of December 1965. Taking advantage of the absence of the plaintiff, the defendants demolished old constructions on sub-plot 48 and illegally took possession over disputed land. 4. Suit was contested by defendant-3. He filed his written statement and denied plaint allegations. It has been stated by him that his house was existing over the disputed land, from more than 12 years ago. Sub-plots 48 and 49 of abadi plot 1408 was not identifiable on the spot. The suit has been wrongly filed in respect of his house. In order to clarify pleading of the defendant, Trial Court recorded statement of the counsel for the parties under Order 10 Rule 2 C.P.C. The Counsel for defendant-3 stated that he could not specify plot number of the house of defendant-3. Trial Court issued Court Amin for survey of the disputed plot and submit his report, in order to ascertain location of disputed plot, on the application of the plaintiff dated 08.02.1980. Court Amin, conducted survey on 07.12.1980 and submitted his report (160-Ka) dated 27.02.1981. 5. The defendant filed his objection (405-C) along with affidavit (406-C) against the survey report. The plaintiff also filed his counter objection (407-C) along with affidavit (408-C) and a rejoinder affidavit (409-C). Court Amin, conducted survey on 07.12.1980 and submitted his report (160-Ka) dated 27.02.1981. 5. The defendant filed his objection (405-C) along with affidavit (406-C) against the survey report. The plaintiff also filed his counter objection (407-C) along with affidavit (408-C) and a rejoinder affidavit (409-C). It appears that without disposal of objection to the survey report, Trial Court framed issues and proceeded to record evidence of the parties. 13.11.2014 was fixed for final arguments of the parties. At this stage, it was noticed that objection of defendant-3 to the survey report remained undecided. Trial Court then heard the arguments of the parties on survey report and by order dated 01.12.2014, held that survey was conducted without location of fixed points as such survey report was illegal. On these findings, he rejected survey report (160-Ka). The petitioners filed a revision (registered as Civil Revision No. 130 of 2015) against the aforesaid order, which was dismissed by order dated 14.12.2015 as not maintainable. Hence, this petition has been filed. 6. The counsel for the petitioners submitted that there was serious dispute between the parties in respect of location of the disputed land. On the application of the plaintiff, Trial Court directed, Court Amin to conduct survey and locate sub-number of disputed land. Court Amin, after conducting survey, in presence of the parties, submitted his report dated 27.02.1981, in which it was found that disputed land was in sub-plots 48 and 49, which belonged to the plaintiff. In view of Order 26 Rule 10 (2) C.P.C. survey report is a piece of evidence, which has to be examined in the light of evidence of the parties, while deciding the suit. Trial Court has no jurisdiction to set aside survey report. Setting aside survey report dated 27.02.1981 on 01.12.2014 is causing grave and irreparable loss to the plaintiff and results in failure of justice. In view of Section 115 (3) (ii) CPC, order dated 01.12.2014 was liable to set aside, exercising revisional jurisdiction but the revision has been illegally dismissed by order dated 14.12.2015. He relied upon judgment of Supreme Court in Subhaga Versus Shobha, 2006 (6) ALJ 235 (SC), in which it has been held that High Court was not justified in setting aside findings of Trial Court based on Survey Commission report. He submitted that impugned orders are illegal and liable to be set aside. 7. He relied upon judgment of Supreme Court in Subhaga Versus Shobha, 2006 (6) ALJ 235 (SC), in which it has been held that High Court was not justified in setting aside findings of Trial Court based on Survey Commission report. He submitted that impugned orders are illegal and liable to be set aside. 7. I have considered the arguments of counsel for the petitioners and examined the record. So far as order dated 14.12.2015 is concerned, the Court below relied upon judgment of this Court in Satendra Prasad Jain Versus State of U.P., AIR 1996 All. 77 , in which it has been held that order of acceptance and rejection of Commissioner's report is an interlocutory order and revision is not maintainable against it under Section 115 C.P.C. In this judgment, scope of Section 115 (3) (ii) CPC, has also been considered. Similar view has been taken by other High Courts in Ramgulam Chaudhary and Others Vs. Nawin Chaudhary and others, AIR 1972 Pat 499 and C.K. Venkatram Naidu Vs. C.R. Vasanthi and others, AIR 2000 Ker 27 . Thus judgment of revisional Court is fully in consonance with law laid down by this Court. 8. Order 26 Rule 9 C.P.C. authorizes the Court to issue Commissioner for local investigation for the purposes of elucidating any matter in dispute. Order 26 Rule 10 (3) C.P.C. provides that where the Court is, for any reason, dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit. A combined reading of aforesaid two provisions shows that Court, who has issued commission for local investigation has to record its satisfaction with regard to the proceedings of the Commissioner. In the light of aforesaid provision, objection against Commissioner's report is being invited from the parties. After hearing the objection, Court has to record its satisfaction. While recording such satisfaction, the Court may confirm the report or may direct such further inquiry to be made. In case it is not satisfied with the proceeding, it is well within jurisdiction of the Court to reject the report as held by this Court in Mangal Misir and another Vs. Ramlagan Misir and others, AIR 1933 All 65 and Mungilal Agarwalla Vs. Hanumanbaksh Agarwalla and others, AIR 1951 Assam 18 (DB). The arguments contrary to it, is not liable to be accepted. 9. Ramlagan Misir and others, AIR 1933 All 65 and Mungilal Agarwalla Vs. Hanumanbaksh Agarwalla and others, AIR 1951 Assam 18 (DB). The arguments contrary to it, is not liable to be accepted. 9. However the fact remains that there is dispute between the parties in respect of location of disputed land. According to the plaintiff, disputed land are sub-plots-48 and 49, while defendant has denied it. In the light of issue between the parties, the plaintiff filed application dated 08.02.1980 for issue of survey commission. Trial Court issued survey commission in order to elucidate the location of disputed land. For deciding such issue, survey report is necessary as held by Supreme Court in Shreepat Versus Rajendra Prasad, 2000 JT (7) SC 379. While rejecting survey report, it was imperative for Trial Court to obtain a fresh survey report in view of Order 26 Rule 10 (3) C.P.C. The petitioners are given liberty to file fresh application before Trial Court for obtaining fresh survey report. In case, any such application is moved before Trial Court then suitable order may be passed on it. 10. Subject to aforesaid observation, this petition is dismissed.