Samir Kumar Mookherjee, J. - (1.) By this Revisional application, the petitioners, who are defendants in a Title Suit for declaration and other reliefs, have challenged Order No. 246 dated 17th of March, 1992, whore by the learned First Assistant District Judge, Hooghly, overruled the objection preferred by the petitioners and accepted the report of the Investigating Commissioner, filed on 25th of March, 1985. Appearing in support of the Revisional application, Mr. Bihani has contended that in view of this statements made by the Investigating Commissioner, in course of his deposition as a witness, the report should not have been accepted. Mr. Tapas Mukherjee, appearing on behalf of the plaintiff/opposite party, has, however contended that in view of the settled position in land that a careful report by an investigating Commissioner ought not to be disturbed by a Revisional Court ordinarily, the Impugned order calls for no interference,particularly when the tests, which are required to be satisfied for attracting section 113 of the Code of Civil Procedure, are not fulfilled in the instant case. In connection with the second point, as stated above, Mr. Mukherjee has tried to argue that this is not a case decided, because the suit remains pending, but only at an interlocutory stage this order had been passed and again such order case be challenged in care there is any necessity for challenging the decree which may be ultimately passed to the suit, in terms of section 104 of the Code of Civil Procedure.
(2.) It appears for the deposition of the Commissioner in cross-examination that the Commissioner admitted that he had no necessity to relay any deed as there was no such direction ; that sixty bighas of disputed land bad been found out by him but not depicted in the map fled by him, though on actual measurement of the relayed land, the area was found to be eighty six bighas and on the basis of his experience be though that the same was the disputed land, because he presumes that the area in the Trust deed was given without actual measurement is identifying the disputed land as 'Chera Bagan'. He relied on the statements of two persons, who were aged thirty years and forty-six years, though the relevant deed dated back to 1895. The Commissioner had further to admit in reply to cross-examination that he was shown a trust deed wherefrom he found the area to be sixty bights, though there was no mention of the tame in hit report nor could be remember the particulars of the deed. From the copies of the deed produced before us the western boundary also appears to differ from that mentioned in the Commissioner's report.
(3.) In course of argument on behalf of the petitioners, a certified copy of another Trust deed executed within the period of a week from the one referred to by the plaintiff had been produced before us.;