BILASINI UPADHYAYA Vs. USHARANI BISWAL

JUDGEMENT

(1.) THIS appeal is directed against the reversing judgment passed by the Additional Civil Judge (Senior Division), Balasore in Misc. Appeal No. 30 of 1990, whereby the appellate court remitted the case back to the lower court for re -determination.

(2.) THE facts of the case lie within a narrow compass. The appellant as the sole plaintiff filed O. S. No. 53/80 I before the Munsif, Balasore, for declaration of her right, title and interest over the suit 'Kha' Schedule lands and for recovery of possession of the same from the defendant -respondent. The suit was eventually transferred to the court of the Additional Munsif, Balasore, who decreed the suit. The defendant being aggrieved by and affected with the judgment and decree passed by the trial court preferred Misc. Appeal No. 30 of 1990 before the Civil Judge (Sr. Division), Balasore, which was heard and disposed of by the Additional Civil Judge (Senior Division), Balasore. The appellate Court by the impugned order reversed the judgment and decree of the trial court and remanded the suit for re -determination of 'Kha' Schedule property after taking the necessary fixed point into consideration by the Commissioner. Thus, the plaintiff has filed the present appeal.

(3.) IN the suit, a Civil Court Commissioner was deputed for demarcating the plaintiff's as well as defendant's lands. While such lands were demarcated, the Commissioner found that a portion of plaintiff's land has been encroached by the defendant. Therefore, the defendant went up in appeal. The appellate court could not agree with the findings of the trial court on the ground that Field Measurement Book was not filed along with the report, nor any fixed points were taken into consideration while conducting demarcation. Therefore, the crux of the whole matter is to find out whether defendant has encroached upon any portion of plaintiff's purchased land. While determining such a fact, it is necessary to take into consideration any two fixed points and commence measurement therefrom in the absence of survey stones. On careful perusal of the report of the Commissioner, it is not found whether there are any survey stones in existence. If the Commissioner would have found that survey stones were in existence, usually the measurement should have started from those survey stones and fixed point would have been determined and thereafter the house site of the plaintiff as well as that of the defendant could have been demarcated.