ORDER
S. Barman, J.
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. S. 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 Court.
2. The dispute arose out of an alleged mistaken identity of certain plots of land — due to bo 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. 14/320 with an area of 3.05 acres and plot No. 14/523 with an area of 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 Gobinda Malik of 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 villager. After delivery of possession to Gobinda Malik as aforesaid the petitioners Labanya Debi and Golak Behera filed Misc. case Nos. 57 and 58 of 1953 objecting to the delivery of possession of the said plots to Gobinda Malik under Order 21, Rule 100 Civil Procedure Code 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 ana 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 Behra. 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, — a piece of land containing an area Order 87 decimals, was wrongly delivered to Gobinda Malik. The claim of Golak Behra, the other objector, was that Out of his land being plot Nos. 598 and 599, a piece of land containing an area 3.05 decimals, was wrongly delivered to Govinda Malik.
The common ground of both the objectors Labanva Devi and Colak Behra 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 at different village Katakamada as aforesaid. In 1958 the said survey-knowing Commis-
sioner 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 aforesaid. 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 an order accepting the Commissioner’s said report and restored the objectors Labanya Devi and Golak Behera to possession. This is the genesis of the subsequent litigation which followed with which the court is directly concerned in the present revision.
3. Thereafter in 1955 the said Gobinda Malik along with his four sons Rusia Malik, Kamadeba Malik, Birabara Malik and Gurubari Malik as plaintiffs filed a suit being Title Suit No. 32 of 1935 against the said objectors Labanya Debi and Golak Behera and four others being Pitabas Mohanty, Purustam Mohanty, Dijabar Mohanty and Hrushikesh Mohanty, the last four Mohanties being relations. In the said suit the plaintiff Gobinda Malik and his sons prayed for a declaration of Title to the said plots being plot No. 377/598 and plot No. 377/599, possession in respect of which was restored to the said objectors, — on the ground that the said plots correspond to plot No. 14/520 and plot No. 14/523, which Gobinda Malik was to get delivery of possession in execution of the decree obtained by him in the said partition suit No. 39 of 1951 as aforesaid.
In the Title Suit No. 32/1956 the defendants Labanva, Golak and others filed written statement taking the defence that the said two plots — Plot No. 14/520 and plot No. 14/523 — did not correspond to plot No. 377/598 and plot No. 377/599 which were wrongly claimed by Gobinda Malik and others in the said Title Suit; and that these plots were distinct plots from the plots claimed by them. On November 28,
1956 a writ of commission was issued by the Court in the said Title Suit No. 32 of 1955 again to a survey-knowing Commissioner, to determine, by measurement, whether the two plots correspond to the other two plots as aforesaid.
On March 29, 1957 the Commissioner filed his report stating that the two plots correspond to the other two plots and further that out of the area of the plots 377/598 and 377/599, — the petitioner Labanya Debi has been in possession of land containing an area of 1 acre and 62 decimals. On May 9, 1957 Labanya and Golak filed objections to the Commissioner’s said report dated March 29,
1957 on several grounds, namely that no notice was issued by the Commissioner to the parties intimating when he would visit and measure the land; that measurement was not done in the presence of all the parties; that the Commissioner’s report that Labanya was in possession of 1 acre and 62 decimals was beyond the scope of the enquiry; that the measurement was wrong — the Commissioner had not taken the correct starting point of measurement. The learned Subordinate Judge on these objections examined the commissioner and heard the objections of the parties. By an order dated January 13, 1958, the learned Subordinate Judge rejected the objections and accepted the Commissioner’s report. Hence this revision by the four defendants, namely, Labanya, Golak Behera, Purastam Mohanty and Dijabar Mohanty.
4. 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 accented. In support of his contention the learned Counsel relied on the provisions of Order 26, Rule 10(2) and Rule
18 of the Civil Procedure Code, 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 Latchan Naidu v. Rama Krishna Ranga Rao, AIR 1934 Mad 548 where it was held that Rule 18 of Order 26 Civil Procedure Code 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 representation made to the Commissioner, or on 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 parties was sufficient to protect the interests of all the other defendants.
He pointed out that the father of Labanya Debi 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 interests 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 Lahanya’a 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.
5. Mr. P.K. Mohanty further argued that the Commissioner’s report about possession, that Labanya had been in possession of 1 acre and 62 decimals of land, was beyond the scope of the enquiry and therefore should not have been accepted. The question of possession was to be decided by the Court, on evidence made before it and could not be delegated to the Commissinner. [n this context the learned Counsel cited before me a decision of the Patna High Court in Mst. Saraswat; Bahuria v. Suraj Narain Choudhury, AIR 1928 Pat 278 where the facts were that a Commissioner was appointed to ascertain the amount of mesne profits and in ascertaining that be entered into the question of possession of the property. He recorded evidence and came to a finding.
On these facts, it was held by the High Court that the Commissioner was not competent to take evidence on the point of possession nor was the Court competent to act upon the evidence taken bv the Commissioner on this point. The present case is stronger because the Commissioner here did
not take any evidence and came to a finding on possession, namely that Labanya was in possession of 1 acre and 62 decimals of land. This, indeed, was absolutely outside the scope of the enquiry which was directed to be made, Mr. G.G. Das tried to distinguish the facts of the Patna case from the present case. He contended that in the Patna case the position was considered at the appellate stage before the High Court and not at the inter-locutory stage.
Therefore, according to him, it was not until the appellate stage, after final determination of the issue by the lower Court, that this matter could he considered. This argument is not acceptable. I rather take the view that instead of waiting up to the appellate stage, this question, — whether or not the Commissioner’s report should be accepted as evidence. — should better be cleared up to this stage, for otherwise unnecessary costs will be incurred by the parties.
6. Mr. Das took a preliminary point that this application in revision is not maintainable because, according to him, the petitioners had got another remedy by way of appeal. In my view, the order of the learned Subordinate Judge under appeal being not an appellate order, the parties had to wait till the final judgment for filing an appeal. Therefore, I think that revision does lie in a matter like this as appears from the decision of the Madras High Court cited above which was a decision on a revision application. In this view of the matter this point taken on behalf of the opposite parties also fails.
7. In the result the order of the learned Subordinate Judge cannot be upheld. This revision is accordingly allowed. The order of the learned Subordinate Judge is set aside, I remand the case to the
learned Subordinate Judge to appoint a new survey-
knowing Commissioner for the purpose of enquiry
and report, and then to decide the case according
to law. The cost of this revision to abide the result of the suit.
