PEMTOOK LEPCHA Vs. SONAM LEPCHA

JUDGEMENT

(1.) THIS Revision Petition filed u/s 115 CPC read with Section 151 CPC and Article 227 of the Constitution, is directed against the order dated 19.04.2006 passed by the learned Civil Judge, North. & East at Gangtok, setting aside the report of the Amin Commissioner dated 21.10.2005 in Civil Suit No. 5 of 2005.

(2.) THE facts relevant for the disposal of this Revision Petition are that, the present Plaintiff/Petitioner in the year 2000, instituted a suit in the Court of the Civil Judge, North at Gangtok against the Respondents, for declaration and other reliefs in respect of piece of land covered by plot Nos. 46 and 565 situated at Santok, Sakyong Block, Lower Dzongu Elaka in the North District. The suit which was registered as Civil Suit No. 1 of 2000 was ultimately dismissed by the learned Court vide judgment and decree dated 20.07.2002. Aggrieved by this order the Plaintiff/Petitioner preferred an appeal before the learned District Judge, East and North at Gangtok. The learned District Judge after hearing the parties, set aside the judgment and decree passed by the learned Civil Judge (E) and remanded the matter to the Ld. trial Court. Since the Ld. District Judge was of the view that the contesting parties had failed to establish identify of the suit land, he directed the Ld. trial Court to appoint an Amin Commissioner to ascertain the identity of the suit land and to dispose of the suit as per law. In pursuance of the direction, the learned trial Court with consent of both the learned Counsel for the parties, appointed one Shri Nimzang Bhutia as Amin Commissioner. The said Amin Commissioner submitted his report on 21.10.2005. The defendant having died in the meantime, one of his sons who was brought on record as Defendant No. 1, filed objection to the Amin Commissioner's report on 09.03.2006, to which the Petitioner filed his reply on 28.03.2006. The parties were then heard and vide order dated 19.04.2006 the report of the Amin Commissioner was set aside. It is against this order that the Petitioner has come up in the present Revision Petition.

(3.) THE short question for consideration is, whether the learned trial Court exercised a jurisdiction not vested in it by law or has acted in the exercise of its jurisdiction illegally or with material irregularity in passing the impugned order and also, whether the impugned order, if it had been made in favour of the Petitioner, would have given finality to the lis or other proceedings.