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2018 DIGILAW 193 (ORI)

Tabhi Nahakani v. Banchha Gouda

2018-02-19

A.K.RATH

body2018
JUDGMENT : A.K.RATH, J. Plaintiff is the appellant against a confirming judgment in a suit for recovery of possession. 2. The case of the plaintiff is that she and the defendants are neighbours. Defendant no.1 is her immediate neighbour on the western side and defendant no.2 is the next immediate neighbour. Her ancestral house stands over the land measuring 9 cubits in breadth on its front side, 10 cubits on its back side and 100 cubits in length. There is a lane of 100 cubits in length and one cubit in breadth between the house of the plaintiff and defendant no.1, which is the suit property. The defendants trespassed on the lane in 1983. The house originally consisted of three rooms measuring 15 cubits. The father of defendant no.1 had purchased one house measuring 5 cubits, but he is in possession over 6 cubits. With this factual scenario, she instituted the suit seeking the relief mentioned supra. 3. Defendant no.1 filed written statement denying the assertions made in the plaint. The case of defendant no.1 is that his father purchased a land measuring 5 cubits x 100 cubits with a house standing thereon from the husband of the plaintiff in the year 1930. He is in possession of the house. He has not encroached upon the land of the plaintiff. He denied existence of the lane between his house and the house of the plaintiff. Defendant no.2 was set ex parte. 4. On the inter se pleadings of the parties, the learned trial court framed three issues. The parties led evidence. During pendency of the suit, a Survey Knowing Commissioner was appointed. He submitted the report vide Ext.3. Learned trial court rejected the Commissioner’s report on the ground that he has not submitted the field book nor mentioned the chain line, fixed points in the map to know whether the conclusion arrived at by him is based on correct mode of measurement. It further held that husband of the plaintiff sold the western side of the room to the father of defendant no.1. The plaintiff has not proved his title over the suit property and encroachment. Held so, it dismissed the suit. The unsuccessful plaintiff challenged the judgment and decree before the learned Subordinate Judge, Aska in Title Appeal No.11 of 1986, which was eventually dismissed. 5. The plaintiff has not proved his title over the suit property and encroachment. Held so, it dismissed the suit. The unsuccessful plaintiff challenged the judgment and decree before the learned Subordinate Judge, Aska in Title Appeal No.11 of 1986, which was eventually dismissed. 5. The Second Appeal was admitted on the following substantial question of law: “Whether the court below is justified in discarding the evidentiary value of the Commissioner’s report which forms a part of the record without assigning any reason ?” 6. Heard Mr.L.K.Moharana, learned Advocate on behalf of Mr.S.P.Mishra, learned Senior Advocate for the appellant and Mr.Baibaswata Panigrahi, learned Advocate on behalf of Mr.S.K.Padhi, learned Senior Advocate for the respondents. 7. Mr.Moharana, learned Advocate for the appellant submitted that learned trial court appointed a Survey Knowing Commissioner. The Commissioner submitted the report. The same has been marked as Ext.3 without objection. The report was rejected by the learned trial court. In such contingency, learned trial court ought to have appointed another Commissioner. He placed reliance on the decisions of this Court in the case of Debendranath Nandi v. Natha Bhuiyan, AIR 1973 Ori. 240 and Kantaru Sahu and others v. Dharma Sahu and another, AIR 1983 Orissa 259. 8. Per contra, Mr.Panigrahi, learned Advocate for the respondents submitted that learned trial court has rightly rejected the Commissioner’s report, since the Commissioner has not submitted the field book nor mentioned the chain line, fixed points in the map. Merely because the report has been marked as Ext.3 without objection, the same does not preclude the court from examining its correctness. The report of the Commissioner forms a part of the record. On an analysis of the pleadings as well as evidence, learned appellate court dismissed the appeal. There is no perversity in the finding. He placed relaince on a decision of this Court in the case of Smt.Lalteemoni Mohanty v. First Addl. District Judge, Cuttack and others, 81 (1996) C.L.T. 726. 9. The dispute pertains to a strip of land. The plaintiff alleges that defendant no.1 has encroached upon a portion of her land. The defendant no.1 denies the same. Learned trial court appointed a Survey Knowing Commissioner. The Commissioner submitted the report. The report has been marked as Ext.3 without objection. District Judge, Cuttack and others, 81 (1996) C.L.T. 726. 9. The dispute pertains to a strip of land. The plaintiff alleges that defendant no.1 has encroached upon a portion of her land. The defendant no.1 denies the same. Learned trial court appointed a Survey Knowing Commissioner. The Commissioner submitted the report. The report has been marked as Ext.3 without objection. Learned trial court rejected the report holding, inter alia, that the Commissioner has not submitted the field book nor mentioned the chain line, fixed points in the map. 10. In Debendranath Nandi (supra), the trial Court accepted that Commissioners’ report and proceeded to decide the matter on that basis. The appellate Court on its own appreciation of the Commissioners’ report found that the said report was not satisfactory and so it could not rely upon the same. On that finding it discarded that report from consideration and proceeded to decide the matter on whatever evidence was available on record. This Court held that the learned appellate court was not justified in deciding the matter without directing issue of a fresh Commissioner for the aforesaid purpose. The proper course under such circumstances is to direct the appointment of another Commissioner calling upon him to submit a fresh report. 11. In Kantaru Sahu (supra), a Survey Knowing Commissioner was deputed by the Court. The Commissioner submitted the report. He had not furnished any field book showing the details of his measurement. This Court held that report of the Commissioner became evidence in the suit and formed a part of the record as soon as it was filed. Since no objection was taken against the Commissioner’s report it was accepted by the Court. In a case where the Court is dissatisfied with the proceedings of the Commissioner for some reason or other, it may direct such further enquiry to be made as it shall deem fit. That is what sub-rule (3) of Rule 10 of Order 26, C.P.C. provides. It was further held that the Commissioner’s report, even though it is not challenged by any of the parties, is not binding on the Court. That is what sub-rule (3) of Rule 10 of Order 26, C.P.C. provides. It was further held that the Commissioner’s report, even though it is not challenged by any of the parties, is not binding on the Court. When parties filed no objection to the Commissioner’s report, the Court rightly accepted the report; but such acceptance by itself does not preclude the parties from challenging the same by cross-examining the Commissioner at the trial or by examining witnesses and proving documents to nullify the effect of the Commissioner’s report or to place the materials from the report itself to prove that the same cannot be relied upon. 12. In Smt.Lalteemoni Mohanty (supra), the earlier decision of this Court in the case of Sambhunath Sahu v. Upendra Palei and others, 57 (1984) C.L.T.278 has been referred to. This Court in Sambhunath Sahu (supra) held as follows: “It is well settled that the Commissioner’s report is only one of the pieces of evidence amongst other evidence to be led by the parties in the suit. It is in no way binding on the court. The court has full power to arrive at its own conclusion even at variance of the report on consideration of the entire evidence on record. The evidentiary value of the report will depend on its nature and other circumstances in the case. It is open to the petitioner to get the disputed land measured by a duly qualified person of his choice and examine him to countermand the effect of the Commissioner’s report. It is also open to the petitioner to countermand the effect of the Commissioner’s report by giving other evidence. Therefore, it cannot be said that the petitioner is seriously prejudiced by acceptance of the Commissioner’s report.” There is no quarrel over the proposition of law. 13. The ratio laid down in the case of Kantaru Sahu (supra) and Debendranath Nandi (supra) proprio vigore applies to the facts of this case. 14. Both the courts rejected the report of the Commissioner. In such contingency, the learned trial court ought to have appointed a fresh Survey Knowing Commissioner for local investigation and ascertained as to whether the suit land or any portion thereof has been encroached upon by the defendants. 15. In the wake of the aforesaid, the impugned judgments are set aside. Both the courts rejected the report of the Commissioner. In such contingency, the learned trial court ought to have appointed a fresh Survey Knowing Commissioner for local investigation and ascertained as to whether the suit land or any portion thereof has been encroached upon by the defendants. 15. In the wake of the aforesaid, the impugned judgments are set aside. The matter is remanded to the learned trial court for disposal in accordance with law keeping in view the observations made above. The learned trial court shall dispose of the suit within a period of six months.