LABANYA DEBI AND ORS. Vs. GOBINDA MALIK AND ORS.

JUDGEMENT

(1.) IN this civil revision, the Defendants Nos. 1, 2, 4 and 5 are the Petitioners in revision, directed against an order of the learned Subordinate Judge, Dhenkanal, in T. Section No. 32 of 1955 rejecting the objections filed by the said Defendants who are the Petitioners in the present application and accepting the report of the Commissioner appointed in the said suit.

(2.) THE dispute arose out of an alleged mistaken identity of certain plots of land, due to be delivered to one Gobinda Malik in execution of a decree in a partition suit filed by him, with certain other plots presumably due to confusion of the successive Commissioners appointed in this connection as hereinafter fully discussed. The matter arose in these circumstances: In 1951 Gobinda Malik filed a suit being suit No. 39 of 1951 against Pitabas Mohanty and Purastam Mohanty being Petitioner No. 3 herein for partition of plot No. 14/520 with an area of 305 acres and plot No. 14/523 with an area 0'77 decimals in Mouza Jankhira. There was a decree for partition in the said suit. In execution of the said decree in Execution Case No. 14 of 1953 for delivery of possession, the Commissioner, appointed therein, wrongly gave delivery of possession to the said Govinda Malik two plots of land, namely plot No. 377/598 and plot No. 377/599, in village Katakamada claimed by the Petitioners Labanya Debi and Golak Behera. Incidentally the said villages Jankhira and Katakamada are adjoining villages. After delivery of possession to Govinda Malik as aforesaid, the Petitioners Labanya Debi and Golak Behera filed Miscellaneous Case No. 57 and 58 of 1953 objecting to the delivery of possession of the said plots to Gobinda Malik under Order 21, Rule 100 Code of Civil Procedure and prayed for restoration of possession. In course of hearing of the said Misc. Case Nos. 57 and 58 of 1953, the Court appointed a survey -knowing Commissioner to measure the land and to find out whether the said plots of land, namely plot No. 377/598 and plot No. 377/599, which had been delivered to Gobinda Malik by virtue of the partition decree, actually appertained to the plots claimed by Labanya Debi and Golak Behera. In the said objection petition, Labanya Debi claimed that out of her lands, namely plot No. 376, plot No. 376/1632 and plot No. 377, apiece of land containing an area of Order 87 decimals, was wrongly delivered to Gobinda Malik. The claim of Golak Behera, the other objector, was that out of his land being plot Nos. 598 & 599, a price of land containing an area of 3.05 decimals, was wrongly delivered to Gobinda Malik. The common ground of both the objectors Labanya Debi and Golak Behera was that plot No. 14/520 and plot No. 14/523 situate at Mouza Jankhira, which Gobinda Malik was to get delivery of possession under the partition decree, do not correspond to plot No. 377/598 and plot No. 377/599 situate in a different village Katakanada as aforesaid. In 1955 the said survey -knowing Commissioner filed his report stating that plot No. 14/520 and plot No. 14/523 do not correspond to the said plot No. 377/598 and plot No. 377/599; thus supporting the objections taken as afore said. The Commissioner also stated in his report that the objectors had been dispossessed from their own lands as claimed by them. On February 14, 1955 the Court in the said Misc. Case Nos. 57 and 58 of 1953 made in order accepting the Commissioner's said report and restored the objectors Labanya Debi and Golak Behera to possession. This is the genesis of the subsequent litigation which followed with which this Court is directly concerned in the present revision.

(3.) MR . P.K. Mohanty, learned Counsel appearing for the Defendant -Petitioners, contended that the Commissioner not having issued notice to the parties, his report cannot be accepted. In support of his contention the learned Counsel relied on the provisions of order 26, Rule 10(2) and Rule 18 of the CODE OF Civil Procedure. Relying on these provisions he argued that the Commissioner's report being evidence, it could not be adduced in the absence of the opposite parties. The Commissioner did not issue notice to the parties, as to when and where he would hold the enquiry and measure the land in accordance with the orders of the Court. In this connection the learned Counsel cited before this Court a decision of the Madras High Court in Modalvalasem Latchan Naidu and Anr. v. Rama Krishna Banga Rao Bobbili Samasthanam : A.I.R. 1934 Mad 548 where it was held that Rule 18 of order 26 Code of Civil Procedure is mandatory and is intended to ensure that the parties have notice of the appointment of the Commissioner and that they must attend his investigation. Moreover, as Rule 10(2), Order 26 makes the report of the Commissioner evidence in the suit, it is of importance that the report should not be founded on representations made to the Commissioner, or matters brought to his notice by one party to the suit alone. Even an emergency cannot absolve the Court from complying with Rule 18. Mr. G.G. Das, learned Counsel appearing for the opposite parties, submitted that the parties were not prejudiced by the Commissioner not having given notice to all the parties because, according to him, presence of one of the parries was sufficient to protect the interests of all the other Defendants. He pointed out that the father of Labanya Devi having been present there is no question of prejudice. This argument is not acceptable because it overlooks the fundamental position that all the parties must be given individually opportunity to make representation of their respective cases. Besides, on the facts of this particular case, it is apparent that though all the Defendants have the common interest of resisting the claim of Golak Behera but their interest inter se were different in that they each were interested in getting from the Commissioner correct identification of their own respective plots and the measurement thereof. This separate interest of each of the Defendants could not be served by the presence of Labanya's father alone. Mr. G.G. Das contended that this point, not having been taken at an earlier stage of the proceedings before the lower Court and no question having been put to the witnesses in cross -examination suggesting their alleged grievances for alleged non -intimation by the Commissioner, this point cannot be taken in revision before this Court. In my opinion, the Petitioners can rightly make a grievance of the fact of the Commissioner not giving sufficient opportunity to the parties to present their respective cases.