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HIGH COURT OF ORISSA
S. Barman, J.
LABANYA DEBI - Appellant
Versus
GOVINDA MALIK - Respondent
Civil Revn. 143 Of 1958
Decided On : AUGUST 18, 1959
COMMISSIONER'S REPORT - EVIDENCE - NOTICE TO PARTIES - SCOPE OF ENQUIRY - POSSESSION - ORDER 26, RULES 10 (2) AND 18, CIVIL PROCEDURE CODE - REPORT OF COMMISSIONER NOT ADMISSIBLE IN EVIDENCE WITHOUT NOTICE TO PARTIES - COMMISSIONER CANNOT DECIDE QUESTION OF POSSESSION.
Fact of the Case:
In a partition suit, the Commissioner wrongly delivered possession of two plots of land to the decree-holder, which belonged to the petitioners. The petitioners filed objections under Order 21, Rule 100 Civil Procedure Code, and the Court appointed a Commissioner to measure the land and find out the mistake. The Commissioner filed a report stating that the plots delivered to the decree-holder did not correspond to the plots claimed by the petitioners. The Court accepted the report and restored possession to the petitioners. The decree-holder then filed a suit for declaration of title and possession of the plots, and the Court appointed another Commissioner to determine whether the plots corresponded. The Commissioner filed a report stating that the plots corresponded and that the petitioners were in possession of 1 acre and 62 decimals of land. The petitioners filed objections to the report, which were rejected by the Court.
Finding of the Court:
The Court held that the Commissioner's report was not admissible in evidence because the Commissioner had not issued notice to the parties as required by Order 26, Rule 18, Civil Procedure Code. The Court also held that the Commissioner could not decide the question of possession, as this was a matter to be decided by the Court.
Issues: 1. Whether the Commissioner's report was admissible in evidence without notice to the parties? 2. Whether the Commissioner could decide the question of possession?
Ratio Decidendi: 1. Order 26, Rule 18, Civil Procedure Code, is mandatory and requires the Commissioner to issue notice to the parties before holding an enquiry. The report of the Commissioner is evidence in the suit, and it is important that the report should not be founded on representations made to the Commissioner by one party alone. 2. The Commissioner cannot decide the question of possession, as this is a matter to be decided by the Court.
Final Decision: The Court allowed the revision petition, set aside the order of the lower court, and remanded the case for appointment of a new Commissioner and fresh enquiry.
S. BARMAN, J.
( 1 ) IN this civil revision, the defendants NOS. 1, 2, 4 and 5 are the petitioners in revision, directed against an order of the learned Subordinate Judge, Dhenkanal, in T. S. No. 32 of 1955 rejecting the objections filed by the said defendants who are the petitioners in the present application and accepting the report of the Commissioner appointed in the said Court.
( 2 ) THE dispute arose out of an alleged mistaken identity of certain plots of land -- due to bo delivered to one Gobinda Malik in execution of a decree in a partition suit filed by him, --with certain other plots presumably due to confusion of the successive Commissioners appointed in this connection as hereinafter fully discussed. The matter arose in these circumstances; In 1951 Gobinda Malik filed a suit being suit No. 39 of 1951 against Pitabas Mohanty and Purastam Mohanty being petitioner No. 3 herein for partition of plot No. 14/320 with an area of 3. 05 acres and plot No. 14/523 with an area of 0. 77 decimals in mouza Jankhira. There was a decree for partition in the said suit. In execution of the said decree in Execution Case No. 14 of 1953 for delivery of possession, the Commissioner appointed therein, wrongly gave delivery of possession to the said Gobinda Malik of two plots of land, namely, plot No. 377/598 and plot No. 377/ 599 in village Katakamada claimed by the petitioners Labanya Debi and Golak Behera. Incidentally the said villages Jankhira and Katakamada are adjoining villager. After delivery of possession to Gobinda Malik as aforesaid the petitioners Labanya Debi and Golak Behera filed Misc. case Nos. 57 and 58 of 1953 objecting to the delivery of possession of the said plots to Gobinda Malik under Order 21, Rule 100 Civil Procedure Code and prayed for restoration of possession. In course of hearing of the said Misc. case Nos. 57 and 58 of 1953, the Court appointed a survey-knowing Commissioner to measure the land and to find out whether the said plots of land, namely plot No. 377/598 ana plot No. 377/599, which had been delivered to Gobinda Malik by virtue of the partition decree, actually appertained to the plots claimed by Labanya Debi and Golak Behra. In the said objection petition, Labanya Debi claimed that out of her lands, -- namely plot No. 376, plot No. 376/ 1632 and plot No. 377, -- a piece of land containing an area Order 87 decimals, was wrongly delivered to Gobinda Malik. The claim of Golak Behra, the other objector, was that Out of his land being plot Nos. 598 and 599, a piece of land containing an area 3. 05 decimals, was wrongly delivered to Govinda Malik. The common ground of both the objectors Labanva Devi and Colak Behra was that plot No. 14/520 and plot No. 14/523 situate at mouza Jankhira, which Gobinda Malik was to get delivery of possession under the partition decree, do not correspond to plot No. 377/598 and plot No. 377/599 situate at different village Katakamada as aforesaid. In 1958 the said survey-knowing Commissioner filed his report stating that plot No. 14/520 and plot No. 14/523 do not correspond to the said plot No. 377/598 and plot No. 377/599; thus supporting the objections taken as aforesaid. The Commissioner also stated in his report that the objectors had been dispossessed from their own lands as claimed by them. On February 14, 1955 the Court in the said Misc. case Nos. 57 and 58 of 1953 made an order accepting the Commissioner's said report and restored the objectors Labanya Devi and Golak Behera to possession. This is the genesis of the subsequent litigation which followed with which the court is directly concerned in the present revision.
( 3 ) THEREAFTER in 1955 the said Gobinda Malik along with his four sons Rusia Malik, Kamadeba Malik, Birabara Malik and Gurubari Malik as plaintiffs filed a suit being Title Suit No. 32 of 1935 against the said objectors Labanya Debi and Golak Behera and four others being Pitabas Mohanty, Purustam Mohanty, Dijabar Mohanty and Hrushikesh Mohanty, the
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