ORDER
Monaranjan Mullick, J.
1. This is an application under Section 115 of the Code of Civil Procedure filed by the petitioners who are defendants in the
Title Suit No. 223 of 1976 pending in the Court of Munsif, 2nd Court at Burdwan against an order No. 16 dated 11-10-1982 of the Ld. Munsif accepting the report of the Local Investigation Commissioner and overruling the objection submitted by the present petitioners against the said report.
2. The facts are briefly as follows : —
3. One Sri Harekrishna Dey now deceased filed a Title Suit No. 223 of 1976 in the Court of the 2nd Munsif at Burdwan against the petitioners and others for declaration of title and for permanent injunction against the petitioners claiming title and possession in the suit property and alleging that the plaintiff and the defendant No. 2 are the owners of C. S. Plot No. 1371 exercising the title and possession therein but in R. S. records of rights. 27 Cent of land in plot No. 1371 has been wrongly recorded in Plot No. 1370 under Khatian No. 399 of Mouza Bamchandai or in the name of the predecessors of the defendants. It is alleged that the said land is the part and parcel of the plaintiffs plot No. 1371 and the defendants are claiming adverse title therein. The present petitioners as defendants filed written statement contending that the plaintiff never had or has any possession on the suit land at any time, that the plaintiffs suit is barred by limitation and the Plot No. 1370 has been recorded in the C. S. record in the name of the predecessors-in-interest of the present petitioners but through mistake the area was wrongly recorded as 14 cent in place of 39 cent and the predecessors-in-interest of the petitioners had all along been in possession of the C. S. Plot No. 1370 and their properties were partitioned and during the R. S. record the two portions were recorded in two plots in the name of the predecessors-in-interest of the petitioners and the petitioners have acquired title by adverse possession also.
4. Before the Ld. Munsif the plaintiff filed a petition praying for local investigation by a Surveyor Commissioner who was to relay the C. S. Plots Nos. 1371 and 1370 and R. S. Plots Nos. 1370 and 1371 and ascertain whether the plaintiffs documents related to C. S. Plot No. 1371 of Khatian No. 99 and R. S. 1370 of Khatian No. 399 and as to whether they covered the suit land or not, the Ld. Munsif
allowed the application and issued a writ. The Ld. Advocate Commissioner on local investigation submitted his report dated 29-10-1979. Being aggrieved by and dissatisfied with the said report the petitioners filed a written objection dated 12-5-1981. The Ld. Munsif rejected the said application and accepted the report. The said order accepting the report of the Advocate Commissioner is ultra vires and without jurisdiction according to the present petitioners. Hence the application under Section 115 of the Code of Civil Procedure on the basis of which the petitioners have obtained this Civil rule which has been opposed by the opposite parties.
5. The main contentions of the petitioners are that the Ld. Munsif acted illegally and with material irregularity in the exercise of his jurisdiction when on his own admission there is discrepancy in the relayment and his acceptance of the Commissioner’s report with the finding that there was substance on the petitioner’s submissions that there is discrepancy is wholly without jurisdiction. It is also contended that if the report of the Commissioner is allowed to stand with the admitted objections, the petitioners will be highly prejudiced and suffer irreparable loss and injury because the report being accepted becomes part of evidence in the suit.
6. The opposite parties have contended that it was within the discretion of the Ld. Munsif to accept or reject the report of the Advocate Commissioner and when he exercises such discretion there cannot be absence of jurisdiction of the Ld. Munsif. It is also observed that the discrepancy in the C. S. and R. S. Line and the relayed line has been rightly observed by the Ld. Munsif to be minor in nature and no interference is thus called for with the order of the Ld. Munsif. Several decisions have also been cited in support of the contention that when the Ld. Trial Court had the discretion the discretion exercised, even if erroneously, would not involve question of jurisdiction.
7. The only point that falls for decision in this rule is whether the Ld. Munsif acted illegally and with material irregularity in accepting the report of the Advocate Commissioner by his impugned order dated 11-10-1982.
8. Mr. Asoke Chakraborty the Ld. Advocate for the petitioners has drawn my attention to the writ of the Advocate Commissioner, to the report submitted by the Ld. Advocate Commissioner and evidence given to the Advocate Commissioner at the time when the petition of the present petitioners was considered by the Ld. Munsif and also the impugned order. It is submitted that the Ld. Advocate Commissioner did not follow the writ of the local commission, that the Ld. Commissioner himself admitted about the discrepancy in the C. S. Line and R. S. Line and the line or relayment which is also apparent from the perusal of the case map and that the Ld. Munsif did not address himself to all these infirmities of the report and arbitrarily accepted the report and it was thus a case in which there was an error in the exercise of jurisdiction which resulted in the petitioners’ suffering irreparable loss and injury because the report once accepted is part of evidence and when such incorrect report becomes a part of evidence, the petitioner’s defence in the suit is really to be prejudiced at the trial of the suit.
9. The writ of Local Investigation Commissioner directs the Advocate Commissioner as follows :
1) to prepare a case map in relayment of the patta dated 29-7-20, deed of release or settlement between Binapani Dutta, plaintiff and the defendant No. 12 dated 20-7-1954 and partition deed dated 6-11-1956 between the plaintiffs and the defendant No. 12.
2) to relay the plaintiffs’ Plot No. 1371 of C. S. Khatian No. 99 and defendant’s C.S. Plot No. 1370 of C.S. Khatian No. 399 and C. S. and R. S. Maps and Khatian and
3) to report whether plaintiffs’ documents dated 29-7-20, 20-7-54 and 6-11-56 and C. S. Plot No. 1371 of Khatian No. 99 and defendants R. S. Plot No. 1370 of R. S. Khatian No. 399 of Mouza Bamchandaipur cover the suit land.
10. I find from the report of the Local Investigation Commissioner that the Commissioner has found the plaintiffs three documents dated 29-7-20, 20-7-54 and 6-11-56 and C. S. Plot No. 1371 of Khatian No. 99 and Defendants R. S. Plot No. 1370 under Khatian No. 399 being recorded in the name of the defendants appertain to the suit land.
11. Mr. Chakraborty has contended that the report suffers from various defects. He contends that the proper fixed points were not taken as a result of which the relayment had been incorrect. This question was considered by the Ld. Munsif and was negatived by him. I also find no reason to hold that the Ld. Advocate Commissioner took incorrect fixed points for the purpose of relayment. Moreover, for the purpose of relayment of documents with the suit property taking of fixed points is not necessary. My attention has, however, been drawn to the evidence of the Advocate Commissioner and to the case map in which some discrepancies have been admittedly found in the lines of the relayment of C. S. Map, R. S. Map and the relayed line of the Commissioner.
12. The Ld. Munsif has considered this
aspect and has observed that such
discrepancies are not material discrepancies
which have the effect of rendering the report
incorrect. I have no reason to hold that such
observation made by the trial Court is in any
way arbitrary which affects his jurisdiction.
As regards the relayment of the documents it
is contended by Mr. Chakrabarty that Ld.
Advocate Commissioner has not taken any
evidence and his result by relayment is
incorrect. On perusal of the report of the Ld.
Advocate Commissioner I find that the
documents were relayed with reference to
the boundaries. The areas and boundaries,
according to the Advocate Commissioner
substantially tallied with the suit land. Such
findings of the Commissioner do not appear
to be at all arbitrary. Therefore only because
evidence of local witnesses were not taken
by the Ld. Advocate Commissioner it would
not justify the conclusion that the report is
incorrect. This is a case in which the Ld.
Munsif considered objection against the
report bona fide and exercised his discretion.
So there does not appear to be any material
irregularities in the exercise of jurisdiction.
Several decisions both of the Supreme Court
and different High Courts have been cited on
behalf of the petitioners. They are as
follows:
AIR 1940 PC 3 (Chandan Mull v. Chiman Lal); AIR 1972 SC 1681 (sic); AIR 1978 Orissa 179; ; (1980) 84 Cal WN 130; ;
AIR 1930 All 477; and AIR 1980 Cal 880 (sic). On behalf of the opposite parties the two decisions cited by the petitioner have also been relied upon. They are AIR 1940 PC 3 and AIR 1978 Orissa 179. Over and above ; and have also been cited.
13-14. I have carefully gone through the decisions cited by both the parties. The decision of the Calcutta High Court lays down that the omission of the trial Court to look into the record of the case is a gross irregularity in the exercise of the jurisdiction and the order is liable to be set aside by the High Court under Section 115 of the Code of Civil Procedure. I have already indicated that the Ld. Trial Court considered all the objections raised by the present petitioners before him and overruled them. He also took into consideration that there are some discrepancies in the report of the Local Investigation Commissioner. He, however, treated the same to be minor. Therefore, it is not a case in which the Ld, Trial Court omitted to look into the record of the case. He looked into relevant record of the case, namely, the report of the Local Investigation Commissioner, the objection petition of the petitioners and evidence tendered by the Commissioner and passed the impugned order.
15. The series of the decision of the
Supreme Court clearly point out that when
the trial Court had the jurisdiction to decide
the matter even if he decided wrongly, no
interference under Section 115 of the Code of Civil
Procedure is called for. Therefore even if
this Court may take the view that the Ld,
Trial Court on consideration of the
discrepancy in the case map should not have
accepted the report of the Local Investigation
Commissioner, it is not a fit case in which
interference under Section 115 of the Code of Civil
Procedure is called for.
16. Moreover the Local Investigation Commissioner continued for a long time. The case of the present petitioners is also to the effect that they have acquired title in the suit property by adverse possession. The report of the Commissioner is evidence in the suit
no doubt, but not conclusive evidence. It is still open for the present petitioners to lead proper evidence before the trial Court at the time of trial and it is also open to the petitioners to urge the trial Court that the report of the local investigation commissioner has no value to consider the merits of the case. Therefore there is no question of the petitioners suffering irreparable loss and injury by the acceptance of the report of the Local Investigation Commissioner.
17. In the result I do not find any reason to interfere with the impugned order. The application is dismissed, the Rule is discharged. There shall be no order as to costs.