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2016 DIGILAW 376 (TRI)

Dulali Goswami v. Prafulla Kumar Paul

2016-11-14

S.TALAPATRA

body2016
JUDGMENT : Heard Mr. A. Lodh, learned counsel appearing for the appellant as well as Mr. P.K. Dhar, learned counsel appearing for respondent. 2. This is an appeal under Section 100 of the Code of Civil Procedure against the judgment dated 30.06.2012 delivered in Title Appeal No. 63 of 2011 by the Additional District Judge, West Tripura, Agartala, Court No.5 affirming the judgment dated 26.09.2011 delivered in Title Suit No. 42 of 2006 by the Civil Judge, Senior Division, Court No.2, West Tripura, Agartala after recording the following clarification or modification:- “Thus, without her knowledge, if any decree of recovery of possession is passed in respect of the whole suit land of area 0.27 acre, future complicacy will arise and the decree will affect her interest. Thus, the decree of Ld. Trial Court needs to be partly modified. Thus, the decree of Ld. Trial Court is confirmed only in respect of an area of 0.24 acre in lieu of 0.27 acre of land making the survey commissioner’s report as part of the Ld. Trial Court’s decree. With such observation and modification, the point no. 2 is decided against the appellant”. 3. At the time of admission of this appeal, the following substantial question of law was formulated for hearing:- “Whether the judgment and decree passed by the courts below suffers from perversity?” 4. At the beginning this court asked Mr. Lodh, learned counsel for the appellant to identify what perversity the appellant would refer on for purpose of questioning the impugned judgment. Mr. Lodh, learned counsel has clearly submitted that the acceptance of the Survey Commissioner’s report dated 12.11.2010 is illegal as the appellant was not given any opportunity to cross examine the Survey Commissioner on the mode of his surveying the land. The ancillary questions that he has raised on finding of recovery hovers on un-sustainability of the finding of possession. According to him, the defendant was all through in the possession and there was no incidence of dispossession ever, as alleged by the plaintiff-respondent. 5. Before the essential fact, as may be required to be placed at the outset, is introduced this Court is of the considered opinion that the second ground of objection, as raised by Mr. According to him, the defendant was all through in the possession and there was no incidence of dispossession ever, as alleged by the plaintiff-respondent. 5. Before the essential fact, as may be required to be placed at the outset, is introduced this Court is of the considered opinion that the second ground of objection, as raised by Mr. Lodh, learned counsel should not be inquired further by this court in its jurisdiction conferred under Section 100 of the CPC inasmuch as the finding of dispossession is a concurrent finding of fact and the appellant could not show any such ground to hold that the courts below had failed to observe the standard procedure of appreciation of the evidence or they have not appreciated the fact following the accepted canons, or it, has been done in total disregard to the evidence on record. Thus, this objection does not survive for further consideration. However, Mr. Lodh, learned counsel has seriously insisted on the other objection that the report of the Survey Commissioner was accepted without affording the appellant any opportunity of cross examining the Survey-Commissioner. 6. This Court after scrutiny of the records finds that in the objection filed by the appellant herein on 01.03.2011 she did not press for cross examining the Survey Commissioner. By the order dated 01.04.2011, the trial Court has observed as under:- “After closure of the evidence of both the sides and on the basis of the prayer of the plaintiff the Survey Commissioner was appointed for local investigation of the suit land and to ascertain the point whether the suit land is situated within the land covered by registered sale deed bearing No. 1-3246, dated 10.3.1970. Subsequently, Mr. Monoranjan Roy, Survey knowing Commissioner submitted his report before this Court and the defendant also filed the written objection against the report of the survey knowing commissioner but the defendant nowhere in their written objection prayed for allowing her to cross examine the survey commissioner. Heard and considered. As the defendant is not interested to cross-examine the Survey Commissioner, learned lawyer of both the parties to this suit are hereby requested to argue their respective cases on the next date.” [Emphasis added] 7. Thus, the objection raised by Mr. Heard and considered. As the defendant is not interested to cross-examine the Survey Commissioner, learned lawyer of both the parties to this suit are hereby requested to argue their respective cases on the next date.” [Emphasis added] 7. Thus, the objection raised by Mr. Lodh, learned counsel cannot be entertained because they have waived their right to examine expressly as is revealed in the order dated 01.04.2011 and this order has not been questioned either in the first appeal or in the present appeal or under any other proceeding. 8. That apart, this court after scrutiny of the Survey Commissioner’s report finds that the Survey Commissioner has clearly opined that after survey, the physical area of the suit land was found to be 0.24 acres, instead of 0.27 acres, as written in the above sale deed. Thus, the observation made by the first appellate Court while affirming the judgment of the trial Court is consistent with that of the Survey Commissioner’s report and the appellant cannot have any legitimate apprehension that any part of her land would be taken during execution of the decree passed by the courts below. 9. Under Order 26 Rule 10 of the CPC, the procedure of the Commissioner has been provided. Rule 10 provides that the Commissioner after such local inspection as he deems necessary and after reducing to writing the evidence taken by him shall return such evidence, together with his report in writing signed by him to the court. The report of the Commissioner and the evidence taken by him, but not the evidence without the report, shall be evidence in the suit and shall form part of the record but the court or with the permission of the court, any of the parties to the suit may examine the Commissioner personally in open court touching any of the matters referred to him or mentioned in his report or as to his report or as to the manner in which he has made the investigation. It has been further provided 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. 10. It has been further provided 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. 10. From the order dated 01.04.2011, it clearly transpires that the appellant though raised objection against the report but did not seek to cross examine the Survey Commissioner and as such the plea as raised by Mr. Lodh, learned counsel in this appeal also cannot be sustained. 11. This Court does not find any perversity in the judgment as challenged in this appeal and accordingly this appeal stands dismissed being devoid of merit. 12. Prepare the decree accordingly and thereafter send down the records.