A court cannot rely upon a commissioner's report to determine the question of possession in a case where the plaintiffs had no right to occupy or possess the property and the commissioner was appointed without issuing notice to the defendants, which is a mandatory requirement under Order 39 Rule 7 read with Rule 8 of the Code of Civil Procedure.

Headnote:
CIVIL PROCEDURE CODE, 1908 - ORDER 39 RULES 7 AND 8 - APPOINTMENT OF COMMISSIONER - NOTICE TO DEFENDANT - NECESSITY - ORAL AGREEMENT TO LEASE - RELIANCE ON COMMISSIONER'S REPORT - VALIDITY.
Fact of the Case:

Plaintiffs filed a suit claiming possession over disputed property based on an oral agreement to lease. The court below appointed a commissioner to ascertain the factum of possession without issuing any notice to the defendants, who were the owners of the property. The commissioner's report was made the sole basis for holding that the plaintiffs were in possession of the property and granting a temporary injunction in their favor.
Finding of the Court:

The court held that the court below erred in relying upon the commissioner's report and, based on this sole material, found the respondents to be in possession. The court held that the court should not have relied upon the report of the Commissioner as it was appointed without issuing notice to the defendants, which is a mandatory requirement under Order 39 Rule 7 read with Rule 8 of the Code of Civil Procedure.
Issues: 1. Whether the court below erred in relying upon the commissioner's report and, based on this sole material, found the respondents to be in possession? 2. Whether the court below should have issued notice to the defendants before appointing the commissioner?
Ratio Decidendi: The court held that the court below erred in relying upon the commissioner's report and, based on this sole material, found the respondents to be in possession. The court held that the court should not have relied upon the report of the Commissioner as it was appointed without issuing notice to the defendants, which is a mandatory requirement under Order 39 Rule 7 read with Rule 8 of the Code of Civil Procedure. The court further held that the plaintiffs had no right to occupy or possess the property as the court below had found that no oral agreement to lease existed.
Final Decision: The court stayed the operation of the order under appeal and directed that till the disposal of the appeal, the operation and implementation of the order impugned dated 26th August, 1997 shall stay.

( 1 ) THIS is an application for staying the operation and implementation of the order dated 26th August, 1997 passed by the learned 4th Assistant District Judge at Alipore in Title Suit No. 81 of 1997 (Kamalesh Chandra Roy and Others, Plaintiffs v. Fosie Chang Chen and Others, Defendants ). The brief facts leading to the filing of the appeal and the present application for stay accompanying the said appeal are that the respondents filed a suit before the Court below contending, inter alia, that, apart from 10 cottahs of land originally leased out to the respondents vide a written lease deed executed in 1986, the other piece measuring 20 cottahs of land, both forming pat of a single larger piece of land measuring in total 30 cottaks, was also leased out to the respondents by the plaintiffs through an oral agreement. The respondents' case before the court below was that even though the 10 cottahs of land, being a part of the whole 30 cottahs of land was earlier leased out to the respondents by the plaintiffs in 1986 through a written lease deed, the other piece measuring 20 cottahs was later on leased out by the force of an oral agreement between the parties entered into sometime in 1996. It was the case of the respondents that on 16-6-96, the appellants orally finalised the terms and conditions of leasing out of the disputed 20 cottahs of land and orally concluded a contract which was entered into by these parties on the same date i. e. 16-6-96. It was also the respondents' case before the court below that a sum of Rs. 2,00,001/- was paid by the respondents to the appellants and that the parties had mutually agreed that within one year from 16-6-96, a documented agreement would be concluded between them. Actually the specific case of the respondents was that the appellants had agreed to execute a written lease deed within the aforesaid period of one year on payment of Rs. 4000/- per month as the rental for the lease of 99 years. Various other averments made in the plaint in support of the plaintiff/respondents contention that the subject matter of property was actually agreed to be leased out by the appellants and that in pursuance of the said agreement, its terms and conditions, and the extended and assurance, the respondents came to occupy and possess the property in question, errected boundary walls around the same and posted night guards etc.

( 2 ) THE appellants have controverted all the aforesaid allegations of the respondents and submitted before the court below that the appellants had only leased out in 1986, 10 cottahs of land and that the disputed property being 20 cottahs did not ever form the subject mater of any lease or any agreement between the parties. It was the specific case of the appellants before the court below that no amount of money was ever received by them in any form from the respondents as any consideration of any type for the leasing of the property in question.

( 3 ) AT the time of filing of the suit before the court below, an application for temporary injunction also came to be filed by the Respondents/plaintiffs. The respondents also prayed to the court below for appointment of a local commissioner so as to ascertain the factual aspect relating to the actual physical possession of the respondents over the property in question. It is the undisputed case of the parties that the Court below by an ex parte order appointed an advocate as local commissioner. It is also the undisputed case of the parties that the local commissioner, pursuant to the aforesaid ex parte order went on to inspect the property in question, without serving any notice upon the appellants and in their absence, having inspected the property, gave a report to the court below. It was on the basis of this report that the court below passed an interim order or injunction restraining the appellants from interfering in the possession of the respondents on prima facie holding that the respondents were in possession of the property.

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Judicial Analysis

1997 Supreme(Cal) 424

High Court Of CalcuttaVINOD KUMAR GUPTA, D. P. KUNDUFOSIE CHUNG CHENEOVA - AppellantVersusMAMA BENDRA CHANDER ROY - RespondentF. M. A. T. 3057 Of 1997Decided On : 11/24/1997

Judicial Analysis

High Court Of Calcutta
VINOD KUMAR GUPTA, D. P. KUNDU
FOSIE CHUNG CHENEOVA - Appellant
Versus
MAMA BENDRA CHANDER ROY - Respondent
F. M. A. T. 3057 Of 1997
Decided On : 11/24/1997