SUBRATA TALUKDAR, J. - (1.) THIS Civil Revisional Application arises out of the order impugned no.84 dated 15th June 2010 passed by the Ld. 2nd Civil Court (Junior Division) at Basirhat in Title Suit no.64 of 2005. The suit is one for declaration of title and permanent injunction. The present petitioner is the defendant in the suit. The plaintiffs are the present opposite parties. The brief facts of the case are as follows. a) The OPs -plaintiffs have claimed in their plaint that the portion of the land with the building situated at the eastern side in RS Dag nos.1010, 1012, 1013, 1015 and no.1016 at present LR Dag no. 1074 comprising Mouza Kulti, JL no.52, RS Khatian no.327, LR Khatian no.504 within Police Station Haroa being the suit property was recorded in the name of the predecessor -in -interest of the OPs ­plaintiffs. b) After the death of their predecessor -in -interest the OP -plaintiffs are possessing the suit property and the present petitioner -defendant, although having no right and interest in the suit property, is trying to dispossess the OP -plaintiffs from the said property. c) During the pendency of the suit the OP­plaintiffs filed an application under order 26 Rule 9 CPC praying for local investigation. The OP - plaintiffs also prayed for appointment of an Advocate Survey Commissioner. The said application under Order 26 Rule 9 CPC stood allowed by the Ld. Trial Court vide Order dated 4th April 2006. d) By the order impugned no.84 dated 15th June 2010 the Ld. Trial Court recorded that both sides were heard in full in respect of the acceptance of the Ld. Survey Commissioner's report. Written objection was also filed by the defendant to the Ld. Commissioner's report. According to the Ld. Counsel for the defendant appearing before the Ld. Trial Court, the Advocate Survey Commissioner committed an error in holding fixed points at the time of local investigation. It was further submitted that the report of the Ld. Advocate Commissioner should not be accepted and a further investigation should be called for. e) The contention of the Ld. Counsel for the defendant was opposed by the Ld. Counsel for the plaintiffs and the Ld. Trial Court, after considering the submissions of the both parties, came to the conclusion that the report of the Ld. Survey Commissioner has been disputed by the Ld. Counsel for the defendant on technical grounds. The Ld. Trial Court was further pleased to hold that the allegation that there are a number of discrepancies in the report of the Survey Commissioner is of no merit. f) It was further held by the Ld. Trial Court that at this stage of the suit the report of the Ld. Survey Commissioner is not bound to be followed by the Court and it must be taken into evidence only by following the due process of law. Accordingly, the Ld. Trial Court was pleased to accept the Ld. Survey Commissioner's report and pass further directions for proceeding with the suit.
(2.) SRI Bidyut Kr. Banerjee Ld. Senior Counsel appearing on behalf of the present petitioner ­defendant has essentially reiterated the points taken on behalf of the defendant before the Ld. Trial Court. Sri Banerjee has argued that from the report of the Ld. Survey Commissioner it would be found that the Ld. Survey Commissioner adopted two fixed points when, as per rules of survey three fixed points ought to have been adopted. Sri Banerjee prefaces his submissions with the factual statement that the land of the petitioner -defendant is situated in Mouza Bamanpukuria which is adjacent to the OP -plaintiffs land in Mouza Kulti. Referring to the second edition of the Lawyer's Guide to Survey and Pleader Commissioner' Diary by Jugal Kishore Chatterjee, Sri Banerjee submits that the law with regard to survey commissions has prescribed that investigation must be done on the basis of three fixed points and no chain surveys can be adopted for surveys in towns and villages. According to Sri Banerjee the Ld. Commissioner's report shows that he has adopted the chain survey method in the suit property which is within a town area and such method is proscribed by law.
(3.) FOR the above reasons Sri Banerjee submits that the order dated 15th June 2010 must be set aside and direction must be given for conducting survey afresh.;