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Sambhunath Sahu Vs. Upendra Palai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revision No. 181 of 1980
Judge
Reported in57(1984)CLT278; 1984(I)OLR363
ActsCode of Civil Procedure (CPC) , 1908 - Order 26, Rule 10
AppellantSambhunath Sahu
RespondentUpendra Palai and ors.
Appellant AdvocateN.C. Pati, Adv.
Respondent AdvocateManoj Kumar Misra, Adv.
DispositionPetition dismissed
Excerpt:
.....from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - 4. it is well settled that the commissioner's report is only one of the pieces of evidence amongst other evidence to be led by the parties in the suit......their reports which were not accepted by the court on the objection of the defendants. the report submitted on the third occasion is the subject matter of the present proceeding. the report of the commissioner was in favour of the defendants (opposite parties) and was objected to by the plaintiff-petitioner. the commissioner was examined and cross-examined by the parties. the court below on a consideration of the report, the materials accompanying the report and the evidence of the commissioner overruled the objections raised by the petitioner and accepted the report.3. it is submitted on behalf of the petitioner that the report of the commissioner reveals several material irregularities which have been admitted by him in his evidence and as such it is very much defective. by.....
Judgment:

D.P. Mohapatra, J.

1. The plaintiff in Title Suit No. 207 of 1977 in the court of the Munsif, Kendrapwra has filed this revision petition challenging the order dated 28. 2. 1980 of the said court accepting the report of the Commissioner despite his objection.

2. The crux of the dispute in the suit is whether the disputed land is a part of plot Nos. 846 and 847 belonging to the plaintiff or it is a part of plot Nos. 843 and 844 belonging to the defendants. On two previous occassions the Commissioners appointed by the Court to measure the land had submitted their reports which were not accepted by the court on the objection of the defendants. The report submitted on the third occasion is the subject matter of the present proceeding. The report of the Commissioner was in favour of the defendants (opposite parties) and was objected to by the plaintiff-petitioner. The Commissioner was examined and cross-examined by the parties. The court below on a consideration of the report, the materials accompanying the report and the evidence of the Commissioner overruled the objections raised by the petitioner and accepted the report.

3. It is submitted on behalf of the petitioner that the report of the Commissioner reveals several material irregularities which have been admitted by him in his evidence and as such it is very much defective. By accepting such a report the petitioner is seriously prejudiced.

4. It is well settled that the Commissioner's report is only one of the pieces of evidence amongst other evidence to be led by the parties in the suit. It is in no way binding on the court. The court has full power to arrive at its own conclusion even at a variance of the report on consideration of the entire evidence on record. The evidentiary value of the report will depend on its nature and other circumstances in the Case. It is open to the petitioner to get the disputed land measured by a duly qualified person of his choice and examine him to countermand the effect of the Commissioner's report. It is also open to the petitioner to countermand the effect of the Commissioner's report by giving other evidence. Therefore, it cannot be said that the petitioner is seriously prejudiced by acceptance of the Commissioner's report.

5. Regarding the correctness of the measurements taken by the Commissioner the court below has come to hold that the latter has taken of sets, measured the area of plots properly and there is no reason to reject the same. As mentioned in the foregoing paragraphs the evidentiary value of the report will be considered by the court while considering the other evidence adduced by the parties and acceptance of the report at this stage is not to be taken as final and conclusive.

6. In view of the discussion aforesaid, there is no merit in the contentions raised on behalf of the petitioner, and there is no justification to appoint yet another Commissioner in the case. The revision petition is accordingly dismissed but in the circumstances of the case, there is no order for costs in this revision.


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