S. Barman, Actg. C.J.
1. The unsuccessful defendant in the courts below is the appellant. This appeal arises out of a suit filed by the plaintiff against defendant for declaration of title to the suit land as described in Schedule A-2 to the plaint and as shown in the Commissioner's map, and la the alternative in Schedule A-1 to the plaint or any area that will be found by the court to have-been encroached, and recovery of possession of the same from the defendant after removal toy the latter of the structure, if any, on the suit land put up by him at his own cost and by ejecting the defendant and other fit, proper and equitable reliefs--all as prayed for in the plaint.
2. The material facts as stated in the court are these: In 1947 the plaintiff is said to have taken temporary lease of Sambalpur Nasal plot No. 1608/2 with an area of 17581 sq.. ft. from the Government. On March, 4, 1947 the defendant also took a registered lease of immediate adjacent (to the north of the plaintiff's plot) plot No. 1608/1 with an area of 16483 sq. ft. On April 7, 1947 the defendant is said to have taken delivery of possession of his plot. The plaintiff's case is that the defendant had wrongfully constructed on the plaintiff's plot 1608/2. It is said that in 1956 the plaintiff suspected encroachment on his land by the defendant. Thereafter at the Instance of the plaintiff the Nazul Patwari was deputed to measure the land. On measurement he found that 2216 sq. ft. out of the plaintiff's plot had been encroached by the defendant. On October 30, 1957 the plaintiff filed the suit for reliefs aforesaid. In defence the defendant pleaded that there was no encroachment as alleged. In the first instance the trial, court appointed a Commissioner. The Commissioner's report was objected by both parties and so rejected by the trial court. Thereafter another Commissioner was appointed by the trial court with the consent of both parties. The second Commissioner found that the defendant had encroached 2340 sq. ft. and accordingly the plaint was amended. Bath the courts below decreed the suit in favour of the plaintiff on the finding that there was encroachment of 2340 sq. ft. as found in the report of the second commissioner which was accepted by both the Courts. Hence this second appeal by the defendant.
3. The points urged on behalf of the defendant appellant are these: The second! commissioner's report is not correct. It was contended that calculations on which the Commissioner based his finding are arithmetically not correct. The defendant contended that the extent of the area of alleged encroachment having not been correctly found, the case should be sent back on remand. The defendant further submitted that in view of the position that the alleged encroachment, if any, being bona fide the defendant should not be called upon to remove the encroachment and that the defendant Is only liable for damages. Apart from merits, the defendant also took a point, for the first time in this second appeal, that in view of the position that the plaintiff asked for removal by the defendant of the-structure, If any, on the suit land put up by the defendant, a separate court fee must also be paid for the relief of removal of the structure under Article 17A of Schedule II of the Court-fee Act.
4. As regards the point taken under the Court-fees Act it was not taken either in the written statement nor raised as an issue, nor even suggested in course of argument before either of the courts below. In my opinion this point cannot be gone into in second appeal. Their Lordships of the Supreme Court in Rathnavarmaraja v. Smt. Vimla, AIR 1961 SC 1299 have clearly expressed the view that the Court-fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with weapon of defence to obstruct the trial of an action. Their Lordships further expressed that they fail to appreciate what grievance the defendant can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate court fee on his plaint. Whether proper court fee is paid on the plaint is primarily a question between the plaintiff and the State. This disposes of the point on court-fee as decided against the defendant appellant.
5. On merits, the question of extent of the alleged encroachment is purely a question of fact which has been decided by both the courts below in favour of the plaintiff. The correctness of the Commissioner's Report cannot be challenged at this stage. The report on which the court below relied was given by an Assistant Engineer, Sambalpur Municipality. His report is Ext. 14 dated October 28, 1959. He was later directed to give a further report on some more points and he submitted a further report on August 18, 1960 Ext. 14-A. The defendant had raised objections to these reports on several grounds. But these objections were rejected by the learned trial court by his order dated September 21, 1960. The defendant then filed a Civil Revision being Civil Revision No. 313/60 in the High Court against the said order. The Civil Revision was summarily rejected on December 2, 1960. It is also noticed that the appointment of this Commissioner was made on the proposal of both parties. Both the Courts found the extent of encroachment on the basis of the report of this Commissioner who is an engineer. This court in second appeal cannot interfere with such concurrent finding of the courts below-
6. As regards equitable relief asked for by the defendant as aforesaid the position is this; The learned lower appellate Court fully considered this aspect and by reference to the evidence he came to the conclusion that the defendant grabbed a bit of plaintiff's plot in the circumstances discussed in the judgment. The learned lower appellate Court did not find that there was any bona fides on the cart of the defendant in making this encroachment. This is not a case where the defendant constructed his building not knowing where the southern boundary of his plot was. The defendant appears to have deliberately made the encroachment. In view of the clear finding of want of bona fides on the part of the defendant, no equitable relief can be given to the defendant as prayed for.
7. In this view of the case the decision of the Court below is upheld. This appeal is dismissed with costs.