RADHASHYAM BHOWMIK AND OTHERS Vs. LALMOHAN NATH

JUDGEMENT

(1.) This civil revision is directed against the order dated 26.8.91 passed by the Sadar Munsiff, Cachar, Silchar, in Title Suit No. 211 of 1986 accepting the Commissioner's report. The opposite party as plaintiff filed a suit (Title Suit No. 211 of 1986) in the Court of the Sadar Munsiff, Cachar, Silchar for declaration of his title to the extent of his interest in the land and for partition of the land described in the Schedule 1 to the plaint and also for confirmation of the possession in respect of the land described in Schedule 2 of the plaint.

(2.) The opposite party submitted an application on 17.5.89 for issue of Commission to make local inspection of the suit land stating, inter alia, that the petitioner No. 1 was trying to construct permanent structures on the suit land. The Munsiff by his order dated 19.5.89 appointed Shri S.S. Dutta, an Advocate of the said Court as Commissioner to make a local investigation and to report as prayed for. On being appointed, the Advocate Commissioner Sri Dutta issued notice to Sri R.N. Gaggar, the counsel for the defendants 1 and 10. The said counsel for the defendant Nos. 1 and 10, however, refused to accept the notice of the Commissioner. Therefore, the Advocate Commissioner proceeded to make local inspection of the suit land on 20.5.89. The other defendants are proforma defendants and no relief was sought for against them. After local investigation, the Advocate Commissioner submitted his report on 14.12.89. On receipt of the report, the Sadar Munsiff invited objection by his order dated 2.11.89. The defendant No. 1 was alone interested in the matter for which the Commission was issued. The present petitioner instead of moving against the said report in an appropriate Court took several adjournments from time to time to file objection and later on filed the objection. After filing of the objection, the Advocate Commissioner was examined as a Court witness. Both plaintiffs-opposite party and the petitioner defendants cross-examined him.

(3.) Thereafter, the Munsiff by his order dated 26.8.91 accepted the report of the Advocate Commissioner after considering all the submissions made by the parties. While passing the said order the Court held that notice on other defendants was not necessary in view of the fact that the allegations of construction of house was made against the first defendant only. Against this order, the petitioner has filed this petition challenging the legality and validity of the order.