BULAKI LAL Vs. MEWA LAL

JUDGEMENT

(1.) Heard Sri Satish Chandra Srivastava, learned Counsel for the petitioners and Sri Mannu Chaudhary, advocate for the caveator-respondents.

(2.) This writ petition has been filed challenging the order dated 9.12.2005 passed by Additional District Judge Court No. 12, Allahabad in Civil Revision No. 696 of 2003 and order dated 21.10.2003 passed by the Additional Civil Judge (Junior Division), Court No. 10, Allahabad in Original Suit No. 761 of 2002.

(3.) The plaintiff-petitioners instituted a suit for permanent injunction against the defendant-respondents. The claim of the petitioners was that they are in peaceful possession over the Sahan and also they have Charahi and animal shed. On an application moved by the defendants, the trial court appointed an Advocate Commissioner who submitted his report. The petitioners filed their objection to the Commissioner's report and the defendants filed their counter objections. The trial court vide order dated 21.10.2003 confirmed the Commissioner's report subject to evidence. The revisional court declined to interfere in exercise of powers under Section 115, C.P.C. Reliance has been placed by counsel for the petitioners on a decision of this Court in the case of Ram Lakhan and Anr. v. District Judge, Basti (now Siddharth Nagar) and Ors. 1993 ACJ 252. It was ruled in this decision that the Court, if being dissatisfied from the report of the Commissioner for the reason that further details are required for ascertaining certain facts, the Court has power to appoint another Commissioner. However, it was further held that the report of earlier Survey Amin is not wiped out unless and until a specific order is passed to the said effect. Other decision relied upon by the counsel is Vemba Gounder v. Pooncholai Gounder AIR 1996 Mad 347 and Balakrishna Menon and Anr. v. Padmavathy Amma and Anr. AIR 1993 Ker 218. On the basis of the aforesaid decisions, it is argued that the mistakes committed by first Commissioner, if confirmed without any objection from both the parties, the appointment of second Commissioner cannot be insisted unless and until the first report is set aside. On the basis of the aforesaid decisions learned Counsel for the petitioners has argued that in the instant case since the Commissioner's report has been confirmed subject to evidence without discussing the objections moved by the petitioners, this will cause irreparable damage to the petitioners' case. In the circumstances, it is emphasized that the order passed by the trial court confirming the Commissioner's report subject to evidence is neither here nor there. In the event, the entire evidence is recorded and thereafter the Commissioner's report is found to be short of complete information regarding determination of the location etc. the second commission cannot be issued after completion of the trial, therefore, the report of the Commissioner has to be decided as a preliminary issue. Counsel for the petitioners has stated that the report of the Commissioner is not in conformation with the provisions of Order XXVI, Rule 9, C.P.C. whereas the counsel for the caveator-respondents submits that the report of the Commissioner does not call for any interference as the report has been submitted in accordance with Order XXVI, Rules 9 and 10, C.P.C.