Back
IN THE HIGH COURT OF ORISSA
Barman, J.
LABANYA DEBI AND OTHERS - APPELLANT
Versus
GOBINDA MALIK AND OTHERS - RESPONDENT
Civil Revision No. 143 of 1958
Decided On : 18-07-1959
COMMISSIONER'S REPORT - EVIDENCE - NOTICE TO PARTIES - SCOPE OF ENQUIRY - ORDER 26, RULES 10(2) AND 18 CPC - POSSESSION - DETERMINATION BY COURT - ORDER 26, RULE 10(2) CPC - REPORT OF COMMISSIONER - EVIDENCE - NOTICE TO PARTIES - MANDATORY - RULE 18, ORDER 26 CPC - SCOPE OF ENQUIRY - COMMISSIONER CANNOT DETERMINE POSSESSION - ORDER 26, RULE 10(2) CPC.
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 CPC, and the Court appointed a Commissioner to measure the land and determine the correct plots. The Commissioner's report supported the Petitioners' objections, and the Court restored possession to them. The decree-holder and his sons then filed a suit for declaration of title and possession of the said plots, claiming that they corresponded to the plots they were entitled to under the partition decree. The Petitioners filed objections to the Commissioner's report in the suit, alleging that no notice was issued to them, the measurement was not done in their presence, and the Commissioner's finding on possession was beyond the scope of the enquiry.
Finding of the Court:
The Court held that the Commissioner's report could not be accepted as evidence because the Commissioner did not issue notice to the parties, as required by Order 26, Rule 18 CPC. The Court also held that the Commissioner's finding on possession was beyond the scope of the enquiry, as the question of possession was to be decided by the Court on evidence taken before it.
Issues: 1. Whether the Commissioner's report could be accepted as evidence when no notice was issued to the parties? 2. Whether the Commissioner could determine the question of possession?
Ratio Decidendi: 1. Order 26, Rule 18 CPC is mandatory and requires the Commissioner to issue notice to the parties before holding an enquiry. The purpose of this rule is to ensure that the parties have an opportunity to present their respective cases. 2. The Commissioner cannot determine the question of possession, as this is a matter to be decided by the Court on evidence taken before it.
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.
JUDGMENT :
Barman, J. - 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. Section 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 suit.
2. The dispute arose out of an alleged mistaken identity of certain plots of land, due to be 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. 14/520 with an area of 305 acres and plot No. 14/523 with an area 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 Govinda Malik 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 villages. After delivery of possession to Govinda Malik as aforesaid, the Petitioners Labanya Debi and Golak Behera filed Miscellaneous Case No. 57 and 58 of 1953 objecting to the delivery of possession of the said plots to Gobinda Malik under Order 21, Rule 100 CPC 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 and 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 Behera. 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, apiece of land containing an area of Order 87 decimals, was wrongly delivered to Gobinda Malik. The claim of Golak Behera, the other objector, was that out of his land being plot Nos. 598 & 599, a price of land containing an area of 3.05 decimals, was wrongly delivered to Gobinda Malik. The common ground of both the objectors Labanya Debi and Golak Behera 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 in a different village Katakanada as aforesaid. In 1955 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 afore said. 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 in order accepting the Commissioner's said report and restored the objectors Labanya Debi and Golak Behera to possession. This is the genesis of the subsequent litigation which followed with which this Court is directly concerned in the present revision.
3. Thereafter in 1955 the said Gobind Malik, along with his four sons Rusia Malik, Kamadeba Malik, Birabar Malik and Gourhari Malik as Plaintiffs filed a suit being Title Suit No. 32 of 1955 against the said objectors Labanya Debi and Golak Behera and four others being Pitabas Mohanty, Purustam Mohanty, Dijabar Mohanty & Hrusikesh Mohanty, the last four Mohanties being re
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
