1. This application is at the instance of the defendant and is directed against the order no.177 dated June 16, 2008 passed by the learned Civil Judge (Junior Division), Third Court at Tamluk, District Purba Medinipur in Title Suit No.195 of 1985 thereby accepting the report submitted by the learned commissioner holding local investigation.
2. The plaintiff/opposite party herein instituted a suit being Title Suit No.195 of 1985 before the learned Civil Judge (Senior Division), Third Court, Medinipur against the petitioner and other opposite parties for eviction and recovery of possession of a licensee, that is, the petitioner. In that suit, the plaintiff has contended that he is the owner of the L.R. Dag No.841 and R.S. Plot No.303 in the District - Purba Medinipur and the defendant/petitioner herein was given possession of the same by the plaintiff as per agreement between the parties. The petitioner is contesting the said suit denying the materials allegations contained in the plaint and it is his specific case that the suit property is not situated on the land of the plaintiff but on the Government acquisitioned land of the 6th National Highway. Thereafter, on the basis of pleadings of both the parties, a survey passed commissioner was appointed to hold local investigation at the instance of the petitioner to decide whether the land possessed by the defendant/petitioner herein appertains to Dag No.303. The learned commissioner held an inspection in presence of both the parties and then he submitted a report, which was accepted upon hearing both the sides. Being aggrieved, this application has been preferred.
3. Now, the question is whether the impugned order should be sustained.
4. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the petitioner has raised several grounds to reject the report submitted by the learned commissioner. The learned commissioner has been examined in details. He has clearly stated that the son of the petitioner was present during the investigation. The petitioner has contended that no fixed point has been decided by the learned commissioner and so the report should not be accepted. Here, it may be noticed that the investigation was held at the instance of the petitioner and during inspection he could not show any better point which should be taken as fixed point. The learned commissioner has clearly stated that no tri-junction point was available. Thereafter on relayment the other surrounding plots such as plot no.235 and taking certain measurements in presence of both the parties, relayment was held. The son of the petitioner signed on the field book prepared by the learned commissioner.
5. During cross-examination, nothing could be shown for which the report submitted by the learned commissioner could be rejected. The learned commissioner has clearly stated that on the basis of fixed points arrived at after relayment of the nearest plot corners, he decided the fixed points. The son of the petitioner could not show any better point that could be taken into consideration to find out fixed points by the learned commissioner. He was examined in Court in details and on perusal of the report, the learned Court has found that there is no major defect in the investigation.
6. This being the position, the report submitted by the learned commissioner after holding the investigation in presence of both the sides, should not be rejected on flimsy grounds. On perusal of the grounds for rejection of the report submitted by the learned commissioner, I find that the petitioner has raised as many as 10 grounds and if the said grounds are considered it would appear that the grounds raised are vague and these grounds could be applied to any report filed by an investigating commissioner when it goes against the party. The objection is not at all definite or specific. Therefore, such objection is not tenable at all. I am of the view that the learned Trial Judge has rightly rejected the objection raised by the petitioner.
7. Moreover, the learned Trial Judge has rightly observed that the report submitted by the learned commissioner is a piece of evidence and it should not be treated in isolation with other piece of evidence forthcoming in the instant suit. In that view of the matter, I am of the view that this application is meritless. It is, therefore, dismissed. Considering the circumstances, there will be no order as to costs.
8. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.