A substantial question of law must be debateable and must have a material bearing on the decision of the case and/or the rights of the parties.

JUDGMENT :

Raja Basu Chowdhury, J.

1. The instant second appeal has been filed, inter alia, challenging a judgment and decree of affirmation passed by the learned First Appellate Court dated 01st December, 2020 and 18th December, 2020 respectively, whereby the judgment and decree for eviction and recovery of khas possession of suit property passed by the learned Joint Civil Judge, Senior Division at Port Blair on 30th July, 2017 in Other Suit No. 91 of 2013 was affirmed.

2. The respondent as plaintiff had filed a suit being Other Suit No. 115 of 2012, inter alia, praying for a decree directing the defendant to handover the khas possession of the suit property by evicting him.

3. The appellant, who is the defendant in the said suit, did not contest the same. The aforesaid suit was decreed ex-parte and the learned Joint Civil Judge, Senior Division was, inter alia, pleased to direct the defendant to vacate and handover khas possession of the suit plot in favour of the plaintiff. Challenging the aforesaid judgment and decree, an appeal was filed, which was registered as Other Appeal No. 22 of 2014.

4. The learned First Appellate Court by an order dated 09th July, 2015 in order to ascertain the factual position, by consent of the parties appointed an Advocate Commissioner as surveyor, inter alia, to identify and demarcate the plots being survey no. 1033 and 1048.

5. The Advocate Commissioner carried out the aforesaid survey upon notice and in presence of the parties and filed a report along with a sketch map and field notes which were tendered and marked exhibit. The Advocate Commissioner was also cross-examined by the appellant. Such fact would corroborate from the order No. 44 dated 06th April, 2017.

6. After conclusion of hearing by a judgment and decree dated 01st December, 2020 and 18th December, 2020, the learned First Appellate Court while dismissing the appeal, affirmed the judgment and decree passed by the learned Joint Civil Judge, Senior Division at Port Blair. Assailing the aforesaid judgment and decree, the instant appeal has been filed.

7. Mr. Banerjee, learned senior counsel representing the appellant by referring to the judgment and decree impugned submits that the learned First Appellate Court had erred in failing to dispose of the objection filed by the appellant against the report of the Advocate Commissioner. He says that the learned First Appellate Court by ignoring such objection had concluded that the report filed by the Advocate Commissioner and the survey conducted by him had not been disputed by the appellant notwithstanding, a written objection to such report being on record.

8. According to Mr. Banerjee, the learned Court was under an obligation to objectively consider the report filed by the Advocate Commissioner under the relevant provision of the Code of Civil Procedure before placing reliance on the same. By placing reliance on a judgment delivered by this Court in the case of Gour Hari Das vs. Jaaharlal Sil., reported in AIR 1957 CAL 90, it is submitted that the Court can after taking into consideration the objections to the report may confirm, vary or set aside the report. In this case, the learned Judge abruptly closed the Misc. Judicial Case on the issue of acceptance of the report of the Advocate Commissioner. The objection filed by the appellant was not considered at all, notwithstanding the aforesaid the learned Judge while passing the judgment and decree had placed reliance on the same to arrive at a conclusion that the suit property was in illegal occupation of the appellant. Such procedure adopted by the learned Judge is irregular to say the least.

9. He has thereafter inviting our attention to the documents appended to an application under Order 41 Rule 27 of the Code of Civil Procedure. In order to examine as to whether the documents are relevant and can be taken into consideration, we have looked into same.

10. We, however, find that such documents were in existence when the first appellate decree