PRATAP NARAYAN GIRI Vs. ASIT BARAN GIRI

JUDGEMENT

(1.) The plaintiff in a suit for declaration and consequential reliefs in respect of an immovable property has preferred the instant revisional application against the acceptance of a report submitted by a commissioner, appointed under Order XXVI, Rule 9 of the Code of Civil Procedure. The primary grievance of the petitioner is that the commissioner did not adopt the appropriate procedure for holding commission since the fixed points taken by the commissioner were part and parcel of private plots and not tri-junction points or public land marks. Even in the absence of appropriate fixed points, it is submitted that commissioner ought to have resorted to superimposition of the map arrived at on the basis of the field report with the relevant settlement map upon enlarging the former to scale. In view of such method not being adopted, the commissioner's report is vitiated and ought to have been set aside by the court below, as per the contention of the petitioner.

(2.) Learned counsel for the petitioner further submits that, the Trial Court while passing the impugned order erroneously equated the provisions of Section 45 of the Indian Evidence Act with Order XXVI, Rule 9 of the Code of Civil Procedure. It is submitted that a report submitted by a survey-passed commissioner upon holding local investigation was to become a part of the records, while Section 45 of the Evidence Act contemplated merely an expert's opinion, which could at best be opinion evidence. As such, the commissioner's report would be sacrosanct for all practical purposes and unassailable at a later stage of the suit in the event the same was accepted despite proper norms of survey work having not been followed by the commissioner.

(3.) Learned counsel for the petitioner also relies on a certified copy of the evidence of the commissioner to justify his contention that nowhere in such evidence did the commissioner say that he had resorted to the method of superimposition with the settlement map. On such grounds, the petitioner has assailed the acceptance of the commissioner by impugned order.