Orissa High Court
Gopal Behera And Ors. vs Lokanath Sahu And Ors. on 5 March, 1990
Equivalent citations: AIR1991ORI6, AIR 1991 ORISSA 6, (1990) 69 CUT LT 769
Author: D.P. Mohapatra
Bench: D.P. Mohapatra
ORDER D.P. Mohapatra, J.
1. The order dated 12-5-89 passed by the learned Subordinate Judge, Bhubaneswar in Title Appeal No. 15 of 1975 whereby he accepted the report of the Commissioner overruling the objections raised by the petitioner is under challenge in this revision petition.
2. Late Agadhu Behera, father of the petitioners, filed O.S. No. 25 of 1973--1 before the Munsif, Khurda for declaration of his title to the suit land, confirmation of his possession thereon and for permanent injunction against the opposite parties-defendants in respect of a strip of land measuring Ac 0.10 decimals under Khata No. 256 in Mouza Sampur. As stated in the revision petition the disputed strip of land lies on the western side of the petitioners' plot No. 558. The adjacent plot bearing No. 557 belongs to the opposite parties. The gist of the case stated in the plaint was that the disputed strip of land was a part of plot No. 558. It originally belonged to one Nityananda who sold the same to Agadhu Behera on 9-3-62. Since then Agadhu Behera and thereafter the present petitioners have been in possession of the disputed land. The defendants, owners of the adjacent plot wanted to forcibly include the disputed land and the well situated thereon by putting a fence. The plaintiff alleged that in that process the defendant encroached over a portion of his plot measuring 5 links x 200 links. In these circumstances, the plaintiff was compelled to file the suit seeking the reliefs mentioned earlier.
3. The defendants in their written statement denied the allegation in the plaint. According to them, the disputed strip of land with the well situated thereon was a portion of their plot No. 557 measuring A.0.45 decimals which they purchased from one Saradha Dei by registered sale deed dated 23-4-53 and since then they have been in possession of the land. It was their further case that there was a green fence to the adjacent east of the disputed well demarcating the land of the plaintiff, but in 1963 the plaintiff and his sons removed the said fence.
4. The trial Court on consideration of the evidence on record decreed the plaintiffs suit holding, inter alia, that the disputed well stood over Hal Plot No. 558 belonging to the plaintiff and that the plaintiff had right, title and interest over the suit land and the well.
5. On appeal by the defendants, the appellate Court by his order dated 7-1-76 deputed a survey knowing Commissioner to measure the two plots in question, plot Nos. 557 and 558 and ascertain to which plot the suit land and the well appertain. The Commissioner submitted his report that the disputed land along with the well as a part of C.S. Plot No. 557. Relying on the Commissioner's report the appellate Court allowed the appeal and dismissed the suit.
6. The plaintiff filed Second Appeal No. 73 of 1980 in this Court. During pendency of the said appeal the original plaintiff Agadhu Behera died and the petitioners were substituted in his place. This Court by judgment dated 26-10-87 set aside the judgment of the first appellate Court and remanded the case for re-disposal of the title appeal with the direction that the lower appellate Court will give fresh opportunity to the plaintiff to cross-examine the survey knowing Commissioner. The Court observed that since the lower appellate Court arrived at the finding on the basis of the report of the survey knowing Commissioner whom he had himself deputed for the purpose he ought to have given reasonable opportunity to the plaintiff to cross-examine the Commissioner and having not done so the impugned judgment could not be sustained.
7. After remand of the case the Commissioner Shri Baidyanath Chakrabarty who was examined as C.W. 1 was cross-examined by the plaintiff. Thereafter it was alleged on behalf of the plaintiffs that there were serious infirmities in the report and as such it was liable to be rejected and a fresh Commissioner should be appointed to measure the two plots and ascertain to which plot the disputed land and the well appertain. On consideration of the matter the lower appellate Court by the impugned order rejected the objection and accepted the Commissioner's report.
8. From the discussions in the foregoing paragraphs, the question that emerges is whether in the facts and circumstances of the case, the Court below was right in accepting the Commissioner's report or he should have rejected the report and ordered a fresh enquiry by a Commissioner. On a reading of the order dated 7-1-76 by which the appellate Court decided to appoint the Commissioner, it appears that on consideration of the case of the parties and the relevant issues framed by the trial Court the Court felt that for the interest of justice appointment of a survey knowing Commissioner was necessary and accordingly directed that such Commissioner should be appointed at the cost of the appellants. As envisaged under the provisions of Order 26 of the Civil Procedure Code a Commissioner is neither to be appointed in every type of suit nor is it mandatory for the Court to appoint a Commissioner in any particular type of suit. It is clear from the provisions in Rule 9 of Order 26 that appointment of a Commissioner in a case is at the discretion of the Court. Indeed this is evident from the language in the provision that in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating the matter in dispute, and other matters as mentioned in the provision, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon tp the Court. The position is well settled that the report of the Commissioner is an item of evidence to be considered by the Court along with other evidence. Rule 10 of Order 26 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. Under Sub-rule (3) of Rule 10 the Court is empowered to direct further enquiry to be made as it thinks fit, in case for any reason the Court is dissatisfied with the proceedings of the Commissioner. From the aforesaid provisions, the position is manifest that the report of the Commissioner together with the evidence, if any, recorded by him is legal evidence in the suit, but the evidence alone without the report of the Commissioner cannot be received as evidence in the suit. Therefore in a case where objection is raised to the report of the Commissioner the Court has to be satisfied that the local investigation was complete and free from error before he accepts the report. In a case where the Commissioner is examined as witness either by the Court or by any party with permission of the Court this point has to be judged in the light of the evidence of the Commissioner in Court. In case there are serious discrepancies between the statement made by the Commissioner in Court and the contents of the report or the evidence during local investigation it will not be safe to conclude that the report is free from error and it is reliable and acceptable. It is to be borne in mind here that the Commissioner's report is intended to assist the Court in proper understanding and appreciation of the matter in dispute in the case. Therefore if a defective report is accepted brushing aside the serious discrepancies in the evidence of the Commissioner and his report and materials recorded during local investigation such a report instead of assisting the Court is likely to mislead him.
9. In the present case it is apparent from the discussions in the impugned order that there were serious discrepancies regarding the measurements taken by the Commissioner as stated by him in his evidence. The Court below refused to attach importance to the said discrepancies observing that in the field book the measurements were recorded correctly. There is no specific finding/ observation in the order that the report of the Commissioner and the measurements recorded in the field book tallied. Further, no specific materials is stated on the basis of which the Court made the observation that the measurements in the field book were correct. Without intending to repeat I may observe that since the Court on consideration of the case of the parties, the nature of controversy raised in the case and the other material facts and circumstances felt that in the interest of justice appointment of a Commissioner at the appellate stage was necessary, it ought to have ensured that the report of the Commissioner should be absolutely free from blemish. In the circumstances discussed above, in my view, the right course for the Court below would have been to reject the report and appoint another survey knowing Commissioner to implement the directions given in the order of the Court.
10. In the result, the civil revision is allowed, the impugned order is set aside and the appellate Court is directed to appoint another survey knowing Commissioner to measure the two plots, plot Nos. 557 and 558 and ascertain to which of the plots the suit land with the well standing thereon appertains. The Court below will take expeditious steps in the matter. Both parties will bear their respective costs of this proceeding.