Tarun Kumar Gupta, J. - (1.) THE defendant is the appellant against the judgment of reversal.
(2.) THE plaintiffs/respondents filed a suit alleging that 1.02 acres of land in plot No.1/110 with other lands originally belonged to Bijoy Krishna Pal who sold the same to his sons namely Nanda Dulal Pal and Chitta Ranjan Pal through a registered kobala dated 23rd September, 1974. While Nanda Dulal Pal and Chitta Ranjan Pal were possessing the same in ejmal, they sold .31 acres with incomplete construction thereupon to the plaintiffs by two kobalas both dated 20th of April, 1994. THE defendant No.1 forcibly trespassed and constructed a Challa in a portion of said purchased land being suit land as described in Schedule B of the plaint. Hence was the suit for recovery of khas possession by evicting defendant No.1 therefrom. Appellant/defendant No.1 contested the suit by filing a written statement denying material allegations and contending inter alia that since 1st of March, 1972 this defendant and others started to possess different portions of entire 1.02 acres of land in suit plot No.1/110 and that those possessors including defendant No.1 have acquired title in their respective portion of land by way of adverse possession and that the plaintiffs had neither title nor possession in any portion of suit plot. Learned Trial Court came to the findings of fact on the basis of evidence on record as well as admission of contesting defendant No.1 that plaintiffs purchased .31 decimals of land in suit plot No.1/110 by two kobalas both dated 20th April, 1994 and that plaintiffs were also in possession of said purchased land. In the case in hand, the Investigation Commissioner was appointed at the prayer of both the plaintiffs and defendant No.1 and submitted a report dated 17th of January, 1998 enclosing a sketch map depicting plaintiffs purchased land as well as suit land. It appears from the judgment of learned Trial Court that though he took note of the admission of contested defendant No.1 that plaintiffs purchased .31 decimals of land through their kobalas and were also in possession of the same but dismissed the suit for recovery of possession on the following grounds: (1) Defendant No.1 challenged the location of the suit land described in Schedule B of the plaint and showed its location in a map prepared in tressing paper annexed with W.S. showing the possession of all 17 persons including defendant in the suit plot. (2) No sketch map was annexed with plaintiffs purchased kobalas dated 20th April, 1994. In absence of a sketch map in kobalas location of the suit property as shown in Schedule B map could not be identified as part of plaintiffs purchased property. (3) Though learned Commissioner was appointed for local investigation on the points mentioned in the application of defendant No.1 as well as in the application of the plaintiffs but learned Commissioner submitted his report only entertaining two points mentioned in the petition of the plaintiffs. (4) Learned Commissioner failed to relay the entire suit plot No.1/110 according to R. S. map and to note the names and addresses of the possessors with specified bounded lands in their possession. (5) Learned Commissioner failed to identify the kobala land, suit land and land in possession of the defendant. (6) As learned Advocate Commissioner held local investigation only touching the points made out in plaintiffs petition totally ignoring the points mentioned in defendants petition, he was not impartial and his report cannot be relied on that ground. (7) It was not established that the suit land alleged to be encroached by defendant No.1 was within the purchased lands of the plaintiffs.
(3.) LEARNED Lower Appellate Court, however, put reliance on Commissioners report in perspective of other evidence on record and decreed the suit after setting aside the judgment of learned Trial Court. At the time of admission of this second appeal the following substantial question of law was framed. Whether the learned Court of Appeal below was right in overlooking that the defendant had filed an application for local investigation praying for relayment of the entire suit property without which identify of the property could not be established and in accepting the report of the commissioner in the absence of relayment of the entire plot without which the suit property could not be identified. Mr. Biswaranjan Bhakat, learned advocate for the appellant, has submitted that learned Lower Appellate Court did not state as to why he accepted Commissioners report disregarding learned Trial Courts observations when learned Commissioner did not cover all the points of the writ and was found to be partisan. In this connection he has submitted that though the report of learned Commissioner was accepted during trial but it was not binding on the Trial Court at the time of final decision of the suit. In support of his aforesaid contention he referred the case law of Sankar Kumar and another vs. Mohanlal Sharma reported in AIR 1998 Orissa page 117.;