CHAITAN DAS Vs. PURNABASI

JUDGEMENT

(1.) This revision is directed against the order passed by the learned Munsif, Anandapur, accepting the report of the survey knowing commissioner.

(2.) Opposite party No. 1 is the plaintiff and the petitioner is defendant No. 1 in Title Suit No. 49 of 1981-I of the court of Munsif, Anandapur. The suit is for declaration of title and confirmation of possession in respect of the schedule 'Ka' property of the plaint existence of right of easement over the schedule 'Kha' property thereof and for other reliefs. The petitioner is the main contestant of the suit. On 18-2-1982 opposite party No. 1 filed a petition for appointment of a pleader commissioner for local investigation. In his counter dated 26-2-1982 the petitioner submitted that a survey knowing commissioner should be deputed for local investigation. After hearing both parties, the learned Munsif, by order dated 23-3-1982 directed appointment of a survey knowing commissioner for local investigation under the provisions of O.26, R.9 of the Civil P.C. ('Code' for short). Accordingly, a survey knowing commissioner was appointed and after local investigation, the commissioner (examined in court as C.W. 1) submitted his report (Ext. III) and map (Ext. IV) on 4-7-1982. The petitioner filed objection to the report and map and inter alia stated therein that in his absence and being influenced by opposite party No. 1, the commissioner had submitted his report in support of the latter. Therefore, the report and map should be rejected. The survey knowing commissioner (C.W. 1) was examined in court. He stated that he visited the suit property for making local investigation on 4-7-1982. Both the parties were served with notices. The petitioner refused to accept the notice. The learned Munsif, after consideration of the evidence, accepted the report of the commissioner by the impugned order.

(3.) Mr. Shyam Mohapatra, learned counsel appearing for the petitioner, urged that as a matter of fact the commissioner neither offered nor served notice on the petitioner before proceeding to the suit property for the purpose of local investigation. Therefore, for violation of the principle of natural justice inherent in O.26, R.18 of the Code, which is mandatory in nature, the report of the commissioner is liable for rejection. Mr. S.Misra-2, learned counsel appearing for opposite party No. 1, on the other hand, contended that the petitioner had due notice. Even if he had no notice, he would not in any way be prejudiced in his defence of the suit because of acceptance of the report of the commissioner as he may have opportunity of taking out a survey knowing commissioner of his choice for local investigation and examine him during the trial of the suit. Further, the order of acceptance of the report of the survey knowing commissioner being not a case decided, a revision is not maintainable in terms of S.115 of the Code. The contentions made by the learned counsel require careful examination.