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IN THE HIGH COURT AT CALCUTTA
SUPRATIM BHATTACHARYA, J.
Arabindu Das and Others – Appellants
Versus
Badal Bera and Others – Respondents
S.A. No. 25 of 2017, IA No. CAN 1 of 2016 (Old No. CAN 9122 of 2016)
Decided On : 11-07-2024
Property - Title Suit - CPC Section 26 - The court discussed the provisions of the Code of Civil Procedure regarding the appointment and acceptance of a Commissioner's report, emphasizing its evidentiary value and the necessity for objections to be raised timely, which influenced the decision to uphold the lower court's ruling.
Fact of the Case:
The appellants filed a title suit for declaration and injunction regarding certain properties, which the defendants contested with a counterclaim. The trial court appointed a Commissioner to assess the properties, leading to a report that was provisionally accepted. The trial court ruled in favor of the defendants, and the appellants' appeal was dismissed by the first appellate court.
Finding of the Court:
The court found that the appellants failed to challenge the Commissioner's report in a timely manner and did not provide sufficient evidence to dispute the defendants' claims. The appellate court affirmed the trial court's findings regarding the title and possession of the properties.
Issues: Whether the lower courts erred in relying on the Commissioner's report and declaring title without partition despite the parties being co-sharers.
Ratio Decidendi: The court held that the Commissioner's report, once provisionally accepted and unchallenged, constituted valid evidence. The absence of timely objections from the appellants indicated acceptance of the report's findings.
Result: The appeal is dismissed.
JUDGMENT :
SUPRATIM BHATTACHARYA, J.
1. The appellants herein have preferred the instant appeal being aggrieved by and dissatisfied with the judgment passed by the Ld. Civil Judge (Sr. Divn.) 1st Court Contai, in Title Appeal No. 37 of 2011. Through the said judgment the Ld. First Appellate Court has been pleased to dismiss the appeal on contest without any order as to cost.
2. The appellants herein were the plaintiffs before the Ld. Trial Court and the appellants before the Ld. First Appellate Court while the respondents herein were the defendants before the Ld. Trial Court and respondents before the Ld. First Appellate Court.
3. Facts before the Trial Court:
The respondents/defendants contested the said suit by filing written statement and controverted the claim of the appellants/plaintiffs and in addition to that has prayed counter claim in respect of the schedule properties.
On the basis of the pleadings the Ld. Trial Judge framed the following issues:
“(1) Is the suit maintainable in its present form and prayer?
(2) Is the suit barred by any law?
(3) Do the plaintiffs have any right, title, interest or possession over the suit land?
(4) Are the plaintiffs entitled to get the decree as prayed for?
(5) To what other relief, if any, are the plaintiffs entitled?
(6) Are the defendants entitled to get their counter claim decreed?”
4. During the proceedings the defendants prayed for appointment of a survey knowing Commissioner and the Ld. Trial Judge after hearing both sides was pleased to appoint a survey knowing Commissioner. The survey passed Commissioner conducted superposition of the maps and thereafter submitted report on 27.05.2008. The appellants/plaintiffs prayed for adjourment on several occasions for filing written objection in respect of the said report of the Commissioner but in spite of passage of eleven months the appellants/plaintiffs had not been able to file any objection, as such the Ld. Trial Judge ultimately accepted the report provisionally on 17.04.2009.
The appellants/plaintiffs did not prefer any appeal or revision against the said order of acceptance of the report on the contrary evidence was adduced on behalf of the appellants/plaintiffs and thereafter the respondents/defendants also adduced their evidence. Two witnesses deposed on behalf of the plaintiffs and record of right under the Bengal Tenancy Act and Revisional Settlement Record of right were exhibited by them. Four witnesses deposed on behalf of the defendants and they exhibited 17 documents which included several record of rights and sale deeds. After consideration of the oral and the documentary evidence the Ld. Trail Judge had been pleased to pass the judgment and decreed the suit in part on contest and decreed the counter claim by passing the following order:
It is hereby declared that the defendants have right, title, interest and possession as regards ‘A’ schedule land of the Counter claim and that the plaintiffs have right, title, interest and possession as regards 10 dec., land of suit plot no. 3516 and 09 dec. land of suit plot no. 3520 only....”
5. Being aggrieved by and dissatisfied with the judgment of the Ld. Trial Court the plaintiffs preferred an appeal being Title Appeal No. 37 of 2011.
The said title appeal was heard and disposed of by the Ld. Civil Judge (Sr. Divn) 1st Court Contai and has passed the impugned judgment, dismissing the said appeal by passing the following order:
The court affirmed that a Commissioner's report, once accepted and unchallenged, is valid evidence in property disputes, emphasizing the importance of timely objections.
Concurrent findings of fact by the Trial Court and First Appellate Court are binding and cannot be interfered with under Section 100 of the CPC.
The court clarified that reliance on an unchallenged Commissioner's report for title determination is improper without accurate property measurement, and limitation for recovery of possession involve....
Commissioner’s reports, if accepted without objection, are not binding and can be challenged during trial. The court must evaluate all evidence before arriving at a conclusion on land disputes.
The main legal point established in the judgment is that the Commissioner appointed under Order 26 Rule 9 CPC cannot give a finding regarding possession of a property and the court should not rely so....
The burden of proof to establish title and possession lies with the plaintiff, and failure to meet this burden results in dismissal of the claim.
Irregularity in Local Commissioner's demarcation report due to non-compliance with land revenue instructions requires fresh commission, not dismissal of possession suit alleging encroachment.
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