The report of the survey knowing commissioner is not binding on the trial court at the time of the final decision of the suit and is to be considered along with other evidence on record.

JUDGMENT :

A.K. RATH, J.

1. By this application under Article 227 of the Constitution, challenge is made to the order dated 19.8.2016 passed by the learned Civil Judge (Junior Division), Puri in C.S No. 15 of 2013 whereby the learned trial court accepted the report of the survey knowing commissioner.

2. The petitioners as plaintiffs instituted the suit for declaration of right, title and interest, confirmation of possession, permanent injunction and other consequential reliefs impleading the opposite parties as defendants. In course of hearing of the suit, the plaintiffs filed an application under Order 26 Rule 9 CPC for deputation of a survey knowing commissioner. The same was allowed. Learned trial court deputed a survey knowing commissioner. The survey knowing commissioner measured the suit plots and submitted the report. Thereafter, the survey knowing commissioner was examined as C.W.1. By order dated 19.8.2016, the learned trial court accepted the report of the survey knowing commissioner.

3. Heard Mr. Samarendra Bal, learned counsel for the petitioners and Mr. D.P. Mohanty, learned counsel for the opposite parties.

4. Mr. Bal, learned counsel for the petitioners, submitted that the survey knowing commissioner was appointed to answer the questions; (a) The area and extent of the suit property on spot in Mouza-Chhaitana in Khata No. 61, Plot No. 1086 and (b) whether the defendants’ new construction, i.e., wall and verandah towards eastern side of his Plot No. 1087 exists over which plot. But then, he has only measured Plot No. 1086. The commissioner has given the topography of the area in a slipshod manner. From the report, it is clear that the encroached area by the defendants to the plot No. 1086 is not correct. The commissioner has not measured the verandah and wall constructed by the defendants over the land of the plaintiffs. In view of the same, the learned trial court is not justified in accepting the report of the commissioner. He cited the decision of this Court in the case of Gopal Behera and Others v. Lokanath Sahu and Others, AIR 1991 Orissa 6.

5. Per contra Mr. Mohanty, learned counsel for the opposite parties, supported the impugned order of the court below. He submitted that merely because the report of the commissioner has been accepted by the court below, the same is not binding on the court. The same can be considered along with other evidence on record. He cited the decision of this Court in the case of Sankar Kumar and Another v. Mohanlal Sharma, AIR 1998 Orissa 117.

6. The commissioner has been appointed to answer the questionnaires cited supra. He submitted the report. He was examined as C.W.1. Learned trial court accepted the report of the commissioner by assigning cogent reasons and came to hold that the report of the survey knowing commissioner is for the assistance of the court and the same is to be read along with evidence on record.

7. In Gopal Behera (supra), this Court held that in a case where objection is raised to the report of the Commissioner, the Court has to be satisfied that the local investigation was complete and free from error before he accepts the report. In a case where the Commissioner is examined as witness either by the Court or by any party with permission of the Court this point has to be judged in the light of the evidence of the Commissioner in Court. In case there are serious discrepancies between the statement made by the Commissioner in Court and the contents of the report or the evidence during local investigation it will not be safe to conclude that the report is free from error and it is reliable and acceptable. The Commissioner’s report is intended to assist the Court in proper understanding and appreciation of the matter in dispute in the case. Therefore if a defective report is accepted brushing aside the serious discrepancies in the evidence of the Commissioner and his report and materials recorded during local investigation such a report instead of assisting the Court i