BISHNU CHARAN SAHU Vs. PARAMANANDA SAHU

JUDGEMENT

(1.) THIS revision came up for hearing earlier before one of us (Honable Shri P. C. Misra, J). In course of hearing on the question of law, he took the view that there can be no limitation on the powers of the appellate Court to depute a survey -knowing commissioner for local investigation if it felt that in the interent of justice the same is necessary even in the trial Court had refused such a prayer. In his opinion, however, this view is not fully consistent with the view expressed by the then Chief Justice in Harmohan Mishra and Anr. v. Arnapurna Dibya and Ors. : 1987 Cuttack Law Times (Supplement) 344, and consequently referred the case to be decided by a larger Bench; This is had . the matter was put up -before us for hearing.

(2.) FACTS essential for appreciation of the point involved lies in a small compass, Opp. parties 1 to 4 brought a suit in the Court of Subordinate Judge, First Court, Cuttack, for title and possession in respect of Ac. 027 decimals of land out of survey plot No. 868 comprising an area of Ac. 4.69 decimals. The petitioner (defendant No. 2 in the suit) took the plea that the disputed land appertained to his own plot and not to the plaintiffs' purchased plot. The trial Court rejected the plaintiffs' prayer for deputation of a survey -Knowing commissioner for local investigation and ultimately dismissed the suit on the evidence adduced by both the parties. Against such decision, the plaintiffs carried appeal to the District Judge where they renewed their prayer for deputation of a survey -knowing commissioner under Order 26. Rule 9 of the Code o1 Civil Procedure. On a consideration of the application the appellate Court observed that the dispute was essentially with regard to boundary between the respective areas of the parties and the same should be measured by a survey -knowing commissioner to ascertain as to, to which plot the disputed land appertains and that the application was maintainable. Accordingly the appellate Court directed the trial Court to depute a survey -knowing commissioner for local investigation, bear the parties on the report of the commissioner, record his finding and submit the same to the appellate Court. The appeal was kept pending till receipt of the finding from the trial Court. It is this order of the appellate Court which is assailed in the civil revision.

(3.) IN the aforesaid case the matter before his Lordship arose out of two Title Suits between the same parties, each alleging encroachment by the other. Both the suits were tried analogously. The main issue in the two suits was whether the disputed wall appertains to plot No. 1247 or to plot No. 1248. Although a survey -knowing commissioner was appointed by the trial Court to ascertain the main controversy between the parties, his report was not accepted and the parties were directed to take out their own Amins to ascertain as to whether the disputed land appertains to plot No. 1247 or 1248. The trial Court did not accept the reports of the Amin as well and considering other materials on record came to the conclusion that the wall in question was used by both the parties commonly since more than 20 years and both of them have acquired the right of user. In appeal against one of the trial Court decrees, the appellate Court also came to hold that the reports of the Amins (PW 3 and DW 4) were in no way helpful to the Court to come to the right conclusion as to which plot the suit wall appertained and that the trial Court had found out a third case which was unwarranted, The appellate Court accordingly took the view that it was necessary to ascertain precisely as to whether the wall stood over plot No. 1247 or over plot No. 1248 for which appointment of a survey - knowing commissioner' by the Court was necessary. Accordingly, the Title Appeal was allowed and both the suits were remanded to the trial Court with a direction to appoint a new survey -knowing commissioner and then dispose of the suits after affording a chance of hearing to both the parties, taking into consideration the other evidence along with the report of the survey knowing commissioner. This order of remand was assailed in revision before this Court. On the above facts Hon'ble Chief Justice has observed that the parties have led! all evidence which they thought fit to bring on record in support of their respective cases. ft was a case where on the evidence on record, the trial Court held that the parties failed to establish their respective cases and this being Rot a case where any party wanted to take advantage of Rule 27 by giving additional evidence, simply because the higher Court felt that better evidence should have been brought on record, it cannot exercise the power of remand. His Lordship gave an analogy that in a suit based on a hand - note, execution of which is denied by the defendant, if the plaintiff does not choose to examine an expert and on that account the suit fails, the appellate Court in exercise of the power of remand cannot direct appointing a handwriting expert, as that would amount to filling up the lacuna in the case and the action would be wholly without jurisdiction. As to the position of law it is stated that where a party with full knowledge fails to discharge the burden of proof, an order of remand is not proper to enable him to get a fresh opportunity for that omission.