BADAN PRASAD JASWAL Vs. BIRA KHAMARI

JUDGEMENT

(1.) A report of the civil court Commissioner deputed to find out whether Schedule-A land of the plaint schedule is a part of Major Settlement plots Nos. 448 and 449 having been accepted, the plaintiff has preferred this revision.

(2.) Mr. S.K. Ghose, learned counsel appearing for the petitioner has assailed the order of the learned Munsif urging of his having failed to notice the fundamental mistakes committed by the Commissioner in measuring the land. It is his submission that since the very report of the Commissioner shows that he has not taken the measurement from any fixed point and taken such measurements from two imaginary points set up by him, the report should have been held to be not of any worth and should have been discarded. A reference to the report shows the Commissioner to have stated that there was no fixed point near the disputed plot and the fixed point available near the tri-junction of plots Nos. 481, 482 and 493 though not far away from the disputed plot, yet since the line was not properly visible from it, it was not possible to carry out the measurement with reference to such fixed point and hence he set up two Mustakil Chandra as `ka' and `kha' near the disputed plots with the help of the map, and established such points in the `Khaka' .The measurement was carried out with refence to such fixed points set up by the commissioner. The procedure adopted by the Commissioner was extraordinary since fixed points in survey operations are paramount fixtures and if the fixed points were not available near about the disputed plot, the Commissioner was to find out other permanent structures such as the temples, old trees or the like near about the plot and take the measurement and if that was not possible, then to carry out the measurement commencing it from the fixed point available and reach the disputed plot. Besides, if the fixed point was available but the line was not visible from such point to the disputed plot, the survey should not have been made by chain method but should have been made by other method of survey suitable for the purpose. In no circumstances, the commissioner should have set up imaginary points with reference to the map by which process there cannot be any guarantee of the accuracy of the measurement. The learned Munsif fell into error of not appreciating such fundamental errors committed by the commissioner and hence the order accepting his report cannot be sustained.

(3.) In the result, the revision is allowed. The impugned order accepting the commissioner's report is set aside and the matter is sent back to the learned Munsif to direct deputation of another commissioner to take proper measurement afresh of the land and proceed in accordance with law. There shall be no order as to costs. Revision allowed.