IMPORTANT POINT
Appointment of Advocate Commissioner – Object of local investigation is not to collect evidence which can be taken in court – Court should not act as an expert to overrule report of Commissioner unless some glaring inconsistencies are found – A defective report cannot be accepted.

JUDGMENT

Chaitali Chatterjee Das, J.—This application under Article 227 of the Constitution of India is directed against an order dated November 28, 2024 passed by the Learned Court of Civil Judge (Junior Division) 4th Court, Howrah in title suit no 263 of 2012 (Smt. Gita Rani Patra versus Renuka Naskar and others) refusing to accept the Commissioners report submitted by the Learned Advocate Commissioner on August 28, 2019.

2. The matter arises out of a suit for declaration, mandatory injunction and permanent injunction registered as title suit no 263 of 2012 was filed by the present petitioner being plaintiff praying for:—

a) Decree for declaration that the plaintiff are the owner of the property as described in Schedule A,C of the plaint and have right for using the common passage as described in Schedule D and E of the plaint.

b) Decree for mandatory injunction directing the defendant to remove the offending construction which has been constructed on the common passage as described in Schedule D and e of the plaint failing which the plaintiff may be given liberty to remove the encroached portion as shown in the sketch map.

c) Decree for permanent injunction restraining the defendant including his men agent and employees from making any further attempt to encroach the common passage of the plaintiff as described in schedule D and E of the plaint.

3. The dispute pertains to encroachment of common passage as described in the plaint as scheduled D and E and for the purpose of proper adjudication the petitioner plaintiff took out an application under Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure,1908 with a prayer for appointment of Investigation Commissioner to draw a rough sketch map on A, B, C, D, E of the plaint by relying on Mouza map and also to note the extent of encroached portion after taking fixed object and actual measurement of existing property of the plaintiff and defendant and such prayer was rejected by the trial court after fixing the matter for framing of issue. Challenging the said Order dated September 18, 2013 an application under Article 227 of the Constitution of India being CO No 4094 of 2013 was filed. The co-ordinate Bench on September 24, 2014 passed an order giving liberty to the plaintiff/ petitioner to describe D and E schedule property in the plaint and to pray for local investigation afresh. Accordingly the amendment petition was filed to rectify the schedule A and schedule E of the plaint and thereafter again filed the application under Order 26 Rule 9 for appointment of Investigation Commissioner. The Learned Court vide an order dated June 19, 2015 allowed such prayer after contested hearing and appointed Mr. Jibananda Dutta the Learned Advocate as Investigation Commissioner to carry out the investigation according to the points mentioned in the said petition. Against the said order the present Opposite Parties filed a Revisional Application being C.O. No 2605 of 2015 and upon hearing the parties the Hon’ble Court dismissed the said revisional application with certain observation and direction. According to Mr. Banerjee, the said Learned Advocate Commissioner duly carried out the investigation work upon notice to both the parties pursuant to the direction passed in C.O. No 2605 of 2015 and then filed his report before the Learned Trial Court on August 28, 2019. After considering the objection and the evidence adduced by the parties the court refused to accept the same with the observation that the report is ambiguous and does not depict the real picture of the suit Dag number and schedule D and E property of the plaint.

4. Being aggrieved thereby this revisional application has been filed by the petitioner. The Learned Senior Advocate Mr. Ashoke Banerjee draws the attention of this Court to the order passed by Hon’ble Justice Harish Tandon on July 23, 2015 where certain observations were made by the Hon’ble Court and specifically observed that “There is no hesitation