SEKHAR CHANDRA CHAKRAVARTY Vs. MANI MOHAN CHATTERJEE

JUDGEMENT

(1.) The defendant is the appellant. Originally his mother was also appellant No. 2 here but after the filing of the appeal she is said to have died and the appellant No, 1 being her sole heir is now prosecuting this appeal.

(2.) The sole respondent brought the suit for declaration of title and recovery of possession over the suit property as mentioned in schedule of the plaint. His case was that the defendants who are his neighbours had encroached over portion of his land in 1975 by taking advantage of his absence in Calcutta. The plaintiff based his title on the sale deed dated 4th July 1949 taken from one Amiya Chakravarty and others who were co-sharers of the defendants and it is not disputed that there was a partition between the defendants on one side and Amiya Chakravarty on the other side by means of registered partition deed dated 29th August, 1947. Thereafter, the plaintiff purchased the entire area which fell to the share of Amiya Chakravarty and others as per the partition deed. The defendants are on the adjacent west of the plaintiff. The plaintiff's case is that during his absence in Calcutta from 25th to 29th April 1975 the defendants constructed a boundary wall on the west side of his land by encroaching over an area of 34'-6" in length and 10' in width. The defendants contested the suit and denied that there was any encroachment by them and their case is that the boundary well was standing on that place from several years before and the allegation that it was constructed during the alleged absence of the plaintiff is not correct. Their further defence is that in any view of the matter their possession is in respect of whatever was given under the partition deed and as such no question of encroachment arises.

(3.) Both parties rely on the partition deed and the plaintiffs' claim is also based on this deed. The Pleader Commissioner submitted his report and map which indicates that the actual position on the spot regarding possession was not in conformity with the partition deed. Further, the trial court itself observed in paragraph 10 of the judgment that the Pleader Commissioner did not make the measurements scientifically. In such a situation I am unable to understand how the trial court cou'd come to the conclusion that there was encroachment by the defendants over the land of the plaintiff. Mr. Mazumdar who is appearing for the defendant-appellant here has pointed out that though the trial court observed that the measurement of the Pleaders' Commissioner is not scientific, the lower appellate court has based its finding on the point of encroachment on the same Pleader Commissioner's report as is apparent from paragraph 12 of the judgment of the lower appellate court. His submission is that in matters of encroachment a correct scientific measurement is essential and this having not been done the finding of the court below based on such a report of the Pleader Commissioner is unsustainable. I think, there is substance in this contention. Unfortunately inspite of service of notice plaintiff respondents has not appeared in this Court. However, in view of what has been stated above it becomes unavoidable to remand the entire case to the trial court for a fresh hearing in accordance with law. Needless to say the trial court will have to get the alleged encroachment measured again by a qualified Commissioner and be satisfied that the measurement made by him and the report submitted by him are correct and scientifically done. If the parties want to lead any further evidence they may be allowed to do so and thereafter the court should dispose of the suit in accordance with law but of course without undue delay.