BALAN Vs. KOUSU

JUDGEMENT

(1.) In a suit for recovery of possession of property after demolishing a wall alleged to have been constructed in the encroached property a commissioner was deputed to measure and identify the property and for demarcating the boundary line. The report submitted by the commissioner was objected to by both parties. The report was then remitted to the commissioner. This process was repeated twice and the Trial Court again remitted the report to the commissioner since both parties requested for remitting the report to the commissioner for submitting a fresh report in the light of objections they have raised also. Then the commissioner, without making any further local inspection, submitted his fourth report (he has styled it as a 'further report') stating that all the details noted by him in his reports and plans dated 22-2-1980 and 2-2-1981 were correct and that there was 'nothing more to add' or there was 'anything to deviate from the particulars furnished therein'. Thereupon, the defendants-petitioners again filed objections to the report and requested the court by an Interlocutory Application to remit the report to the commissioner with a direction to submit a fresh report taking into account their objections also. The Trial Court dismissed that application. The defendants challenge that order in this Civil Revision.

(2.) In the order impugned, the Trial Court has said:

(3.) The power to remit the report to the same commissioner or to set aside the report and issue a second commission can only be under R.10(3). R.10(3) can be invoked only when the Court is dissatisfied with the report already submitted by the commissioner. As is clear from the rule, the direction has to be For 'such further enquiry to be made as it shall think fit' when the court remits the report to the same commissioner So, when the court remits the report to the very same commissioner in view of the objections of the parties, it goes without saying that the commissioner will have to make a further local inspection and submit report adverting to the objections of the parties also. If, according to the commissioner, no purpose will be served by making a further local inspection, he can very well return the order without executing the same. These are the only two alternatives available to the commissioner. Going by the scheme of the provisions the commissioner cannot submit a 'further report' as has been done in this case and that too without making any further enquiry. It has to be noted that the court was not satisfied with the report already submitted as, otherwise, under R.10(3) the court cannot remit the report. By the order impugned, the court has sustained the report of the commissioner which was remitted to him as the court was not satisfied with the same. The remitted report cannot be given life by the commissioner by simply forwarding it to the court with a further report. Even if the request of the defendants was for remitting the report to the same commissioner, if, according to the court, no purpose will be served by remitting the report to the very same commissioner, the court can give them an opportunity to file an application for the issue of a second commission. This is what the Trial Court should have done in this case. The parties are free to apply for a second commission.