SATIPADA SAHA Vs. SADHANA RAY

JUDGEMENT

(1.) Heard Mr. S.K. Saharia, learned counsel for the petitioners. By filing this application under Article 227 of Constitution of India the petitioners, namely, Sri Satipada Saha & Smti. Prava Saha, have challenged the order dated 18.11.2013 passed by the learned Munsiff, North Salmara at Abhayapuri, in Title Suit No. 37 of 1997, for rejecting the application of the petitioners submitted on 07.10.2013 praying for appointment of a fresh commission. This application was necessitated in view of the fact that initially a 1st Commission was appointed under Order XXVI Rule 9 of the Code of Civil Procedure and the said report was rejected by the learned Trial Court. The learned Trial Court thereafter appointed a 2nd Commission which submitted report on 23.05.2006 after making the survey and demarcation of the suit land and thereby, the Survey Commissioner identified encroachment of 4 lechas of land by the defendants. The 2nd Commission's report dated 23.5.2006 was rejected by the learned Trial Court on 22.05.2012 observing that both sides had raised objection.

(2.) Thereafter by filing an application on 07.10.2013, the petitioners made a prayer before the learned Trial Court that a fresh commission be appointed in view of the fact that both the earlier commission reports were rejected by the learned Court. The learned Court found that earlier report submitted on 23.05.2006 was rejected by the learned Trial Court on 22.05.2012 and since no such prayer for fresh commission was made by either of the parties within a long period of 17 months, there is no reason for appointment of a fresh commission.

(3.) The order dated 18.11.2013 depicts that despite repeated order by this Court to scope of order XXVI Rule 9 & 10 of the Code of Civil Procedure, the learned Trial Courts are still under impression that a Survey Commission's report submitted under Order XXVI Rule 10 of the Code of Civil Procedure needs to be accepted or rejected at the preliminary stage. This Court in the case of Silchar Municipal Board Vs. Eastern Tea State,1993 2 GauLR 445discussed the law involving order XXVI Rule 9 & 10 of the Code of Civil Procedure and held that a report submitted by Commissioner is a part of record of the proceeding by operation of law and so Court is not obliged either to accept or reject a report of Commissioner at the preliminary stage of trial. This Court considered the judgment of the Judicial Committee of the Privy Council and a judgment of the Hon'ble Patna High Court in this regard. The nature and character of a report of the Survey Commissioner received the consideration of the judicial committee of the Privy Council in the Case of Chandan Mull, Indra Kumar Vs. Chiman Lal Girdhar Parekh, 1940 AIR(PC) 3. In that judgment the Judicial Committee of the Privy Council held that a report submitted by a Commission is an opinion of expert. A Court cannot look into truthfulness or otherwise of the said report unless some apparent and glaring irregularities occurring therein are brought on record.