SURAJMAL KHANDALWALLA Vs. KRUSHNA CHANDRA DAS

JUDGEMENT

(1.) This appeal is directed against the order of remand for fresh disposal of Title Suit No. 46 of 1968 passed by the learned District Judge , Baripada.

(2.) THE case of the plaintiffs who are the appellants is that they are owners in possession of plot Nos. 12 and 13 pertaining to Khata No. 44/1/40 of the current settlement of mouja Hanada. To the adjoining east of plot No. 13 exists plot No. 14 belonging to the defendants who are the respondents. A green fence separated the boundaries of plot Nos. 13 and 14 On 2. 6 1968 the defendants cut and removed a portion of the green fence and on 22. 6. 1968 they forcibly removed the green fence entirely. Thereafter they encroached upon a portion of plot No. 13 described in detail in schedule Ka -1 of the plaint and constructed a shed on it. As a result, the plaintiffs were not only dispossessed from the encroached land, but also they sustaired less to the extent of Rs. 50/ -. Therefore, the plaintiffs instituted the suit for declaration of their title in respect of schedule Ka -1 Sand of the plaint, for recovery of possession thereof by eviction of the defendants therefrom, for permanent injunction and for compensation.

(3.) DURING trial of the suit a survey knowing Commissioner was appointed to make local Investigation and find out by measurement if the suit land described in schedule Ka -1 of the plaint forms part of plot No. 13 belonging to the plaintiffs or plot No. 14 belonging to the defendants. The survey knowing commissioner accordingly made local investigation and submitted his report to the trial Court. The defendants raised objections to the report of the survey knowing Commissioner. The learned Subordinate Judge did not dispose of the objections and so did not pass any order either accepting or rejecting the report. Nevertheless, he tried the suit and dismissed the same. Against the judgment and decree passed by him, Title Appeal No. 30 -M of 1969 was preferred before the learned District Judge who allowed the appeal and rerhanded the suit for fresh disposal according to law after disposing of the objections to the report of the survey knowing Commissioner. After remard the trial Court examined the survey knowing Commissioner and considered the objections of the defendants against his report. It appears from the order dated 22 -7 -1976 passed by him that two main objections were raised by them. The first objection was that the survey knowing Commissioner had not taken fixed points from the old settlement pillars which were existing nearby and so he arrived at a wrong conclusion. The second objection was that the map used by him for the purpose of survey was not correct. With regard to the first objection the learned Subordinate Judge opined that the evidence given by the survey knowing Commissioner could be appreciated at the time of trial of the suit and so at that stage no finding could be recorded as to the correctness of the measurement. With regard to the second objection he opined that the map had been supplied by the Court to the survey knowing Commissioner and at that stage no objection had been raised by any of the parties. Finally he said, 'So the report of the Commissioner is tentatively accepted as evidence and the parties to give evidence, if any, to countermand it'. Thus, on a reading of the order dated 22 -7 -1976 it is apparent that the learned Subordinate judge did not apply his mind to the objections raised by the defendants to the report of the survey knowing Commissioner and did not dispose of the same on merits. There was no reference in the said order to any part of the report or any portion of the evidence of the survey knowing Commissioner. He kept the matter completely inconclusive and gave a vague direction that the report was tentatively accepted. Thereafter he decreed the suit and declared the plaintiffs' title in respect of the suit land and directed recovery of possession. Against the judgment and decree, the defendants preferred an appeal before the learned District Judge who, in view of the unsatisfactory manner of disposal of the objections to the report of the survey knowing Commissioner by the trial court, allowed the appeal and remanded the suit for fresh disposal according to law with a direction that the trial Court shall dispose of the objections of the defendants with regard to the report of the Commissioner and if necessary, he may direct appointment of another Commissioner and after disposal of objections, if any, and after accepting the report, he shall decide the suit afresh. The unsuccessful plaintiffs are the appellants in this Court.