High Court
Case Details
CRP 481/2010 BEFORE THE HON’BLE MR. JUSTICE S. TALAPATRA
Legal Reasoning
Heard Mr. N. Bhuyan, learned counsel appearing for the petitioner as well as Mr. B.R. Dey, learned senior counsel for the respondents. This is a petition filed under Article 227 of the Constitution of India against the orders dated 027.09.2010 as passed by the Munsiff, Bangaigaon in Title Suit No.09 of 2002 accepting the report of the Survey Commissioner dated 09.11.2009. The petitioner is the plaintiff in the suit which was filed for the declaration and recovery of possession by evicting the defendants. It is gathered from the p laint that the Schedule-C land which is a part of the Schedule-A land is being i llegally possessed by the defendants beyond the land that was purchased by a reg istered sale deed. At the instance of the plaintiff the Survey Commissioner was appointed under Order XXVI Rule 9 for ascertaining the Schedule-C land having re gard to the entire Dag No.886 pertaining to Khatian No.307 at S.R.O. Aryapur, Go alpara. The Court of the Munsiff, Bangaigaon having persuaded by this prayer appointed A ssistant Settlement Officer, Bongaigaon of Bongaigaon Revenue Circle as the Surv ey Commissioner to survey the entire plot No.886 by the order dated 23.11.2004. The reference is required to be extracted which is as under: (cid:28)The A.S.O, Bongaigaon Revenue Circle is appointed as the Commissioner to Survey the entire land and ascertain the suit land. Plaintiff shall take necessary ste ps and also deposit the cost of Rs.200/- towards the commissioner’s cost.’ In this order of reference there is no mention of the plot No.886 but th ereafter when the Survey was conducted and the report was submitted in terms of the said order dated 23.11.2004, the Court of the Munsiff, Bangaigaon refused to accept the said report by the order dated 05.07.2009 holding that the said surv ey was not conducted giving due notice to the parties, at the time of survey. Ac cordingly the plaintiff was asked to take fresh step. Thereafter, another report was filed by the said Survey Commissioner but the said report as well was not a ccepted by the Court vide order dated 24.08.2009 holding categorically that the Survey Commissioner was appointed to survey the entire plot of land covered by D ag No.886 but the said plot was not surveyed. For this reason, the report was no t accepted by this Court. As such, the A.S.O, Bongaigaon was again directed vide order dated 29.06.2009 to hold a fresh survey regarding the entire plot covered by Dag No.886. Pursuant to the order dated 24.08.2009 the report was furnished by the said Assistant Settlement Officer giving the following findings : (cid:28)it is found that an area of 6.70 lessa (six point seven zero lessa) is under po ssession of the defendants. Therefore (6.70 lessa-6.25 lessa) = 0.45 lessa is fo und excess. Bur the said excess land does not belongs to the plaintiff. The shar e of plaintiff’s land as per record is found correct in the spot. (cid:29) Before that the said Commissioner observed that both the plaintiff and the defen dants were present at the time of survey and they did not raise any objection. H owever, after filing of the report the plaintiff raised serious objection. But n owhere in the report it has not been reflected how was the said plot Dag No.886 was identified by the Survey Commissioner. It is reflected in the impugned order that the plaintiff objected regarding the method of surveying the land and for not surveying the entire plot. Mr. N. Bhuyan, learned counsel appearing for the petitioner submitted before the Court that the Survey Commissioner has not measured the entire plot as directed . The purported survey was carried out without any cadastral point and as such t he measurement is erroneous. While meeting this question in the impugned order t he Munsiff, Bongaigaon held that it appeared from the report of the A.S.O, Bonga igaon that he measured the land of the plaintiff and the defendants and found th at measured area of the land was tallying with the records. The basis of this observation is definitely not there. There is no answer whethe r the survey was done cadastrially or not. But it is found in the impugned order as follows: (cid:28)Further regarding non measurement of the lands from the cadastral point, the AS O deposed that due to the on going resettlement operation for a long period, the cadastral points are lost. As such, they by taking the roads, old temples as fi xed point do the measurements. And in this case also the same procedure was foll owed. Further at the time of survey both the parties were present and none of th em has raised any objection to the ASO. (cid:29) It is really surprising that without cadastral point how the Survey Comm issioner has identified the land having relation to the Plot No.886 as he observ ed in his report. It appears that the report was not prepared firstly on the bas is of the reference and secondly not following any scientific method and the exp lanation that has been excerpted herein from the impugned order dated 27.09.2010 has not found place in the report. The statement was only made by the Survey Co mmissioner at the time of deposing before the Court. If that really so, such obs ervation should have been made the part of the report because when a scientific investigation is called for by the Court the method that is followed forms the f oundation of the entire survey and more so it is essential to understand the out come. Without going into the further details, this Court is satisfied that the order dated 27.09.2010 has been passed by the Munsiff, Bongaigaon without consi dering these aspects of the matter. On the other hand, while refuting the submission of Mr. N. Bhuyan, learn ed counsel appearing for the petitioner Mr. B.R. Dey, learned senior counsel for the respondents submitted very categorically that purpose of any investigation under Order XXVI Rule 9 is for finding the truth and not to investigate any aspe ct, not related to the subject matter. From the report of the Court it emerges t hat the Survey Commissioner on completing the survey reached to a finding that n o land of the plaintiff is under encroachment by any person. Even there is a fin ding that the defendants are possessing the land beyond what they did really own . There cannot be any difference of opinion with the submission as project ed by Mr. B.R. Dey, learned senior counsel for the respondents that the purpose of appointment of the Survey Commissioner is supplemental aid of the Court to un earth the truth. Thus means and mode of such investigation acquire a greater imp ortance. If the report is required to be relied on by the Court, serious scrutin y at the threshold has to be made and flaws that might emerge be debated on prel iminary assessment of the report. This Court is bound to observe that this repor t is full of flaws and it is of no unility. Thus the impugned order dated 27.09.2010 is interfered with and set aside. The Munsiff, Bongaigaon is directed to appoint another Survey Commission er having scientific knowledge of the cadastral survey of land and make the refe rence in clear terms to find out the status of the disputed land. The plaintiff has to bear the entire cost of the said Commission. With these observations and direction this petition stands allowed.