Arun Chanda And Ors vs Swapan Debnath And Ors

Heard Mr. P. Roy Barman, learned counsel appearing for the respondent. None appears for the appellants despite repeated calls.

This is a second appeal preferred by the appellants against the concurrent finding of facts recorded by the Courts below.

The brief facts are that, there was an agreement between the predecessor-in-interest of the appellants and the respondent that on payment of the remaining consideration money out of the said Agreement dated 28.09.2005, having Deed of Agreement No.1-11009, the total consideration money was agreed at Rs.2,40,000/-, and as per terms and conditions of the said registered Deed of Agreement, the respondent paid Rs.50,000/- as advance to the predecessor-in-interest of the present appellants, which is undisputed. The agreement was a time bound, fixing a period to pay the remaining balance amount of money of Rs.1,90,000/- on or before 28.02.2006, and on receipt of the said balance amount of money, the predecessor-in-interest of the appellants would execute the necessary Sale Deed.

The respondent, within the said period of the Agreement dated 28.09.2005, had offered the predecessor-in-interest of the appellants to receive and accept the remaining balance at Rs.1,90,000/- and requested the predecessor-in-interest of the appellants to execute the Sale Deed. Despite, the readiness and willingness to pay the remaining balance amount of money of Rs.1,90,000/-, the predecessor-in-interest of the appellants did not come forward to execute the registered Sale Deed in terms of agreement dated 28.09.2005.

Thereafter, the respondent herein had instituted a suit praying for a decree for specific performance of contract i.e. for execution of registered Sale Deed before the Court of Ld. Civil Judge, Senior Division, West Tripura, Agartala and the said suit was registered as Title Suit No.16 of 2006.

The defendant-appellant had contested the suit by filing written statement.

After recording of evidence of both the plaintiff and defendant, the learned trial Court dismissed the suit vide judgment dated 25.06.2008.

Thereafter, the respondent preferred first appeal before the Court of Ld. District Judge, which was registered as Title Appeal No.5 of 2008. The appeal was allowed, and accordingly, the suit was decreed in favour of the plaintiff vide judgment and decree dated 02.06.2011.

Being dissatisfied with the said judgment and decree dated 02.06.2011, the appellants of the present appeal had preferred an appeal before the then Hon'ble Gauhati High Court, which was registered as RSA No.85 of 2011.

After hearing the parties, the High Court vide judgment and order dated 27.07.2015 had remitted the matter to the trial Court with a direction to appoint a Survey Commissioner to determine whether the suit land, as claimed by the respondent of the present appeal attracts the land that has been mentioned in the registered Deed of Agreement dated 28.09.2005, having Deed No.1-11009.

Accordingly, the learned trial Court after receipt of the case records had appointed one Survey Commissioner and the Survey Commissioner had surveyed the land and submitted his report to the learned trial Court.

After the receipt of the report of the Survey Commissioner, the learned trial Court had fixed a date for filing objection by the present defendant-appellants. The learned counsel appearing on behalf of the defendant-appellants had appeared before the learned trial Court, but, did not file any objection. However, a subsequent date was fixed. On that day, the learned counsel appearing on behalf of the defendant-appellants had made oral submissions that the report of the Survey Commissioner was vague one, but, he did not consider to file any written objection clarifying the vagueness he found in the report of the Survey Commissioner.

After hearing the learned counsels of the parties, the learned trial Court having found the suit land did attract the registered Deed of Agreement dated 28.09.2005, decreed the suit in favour of the plaintiff, respondent herein and passed a decree declaring that the defendant-appellants were liable to execute the registered Sale Deed in terms of the Agreement dated 28.09.2005.

Being aggrieved, the defendant-appellants had preferred the first appeal before the Court of Ld. District Judge, West Tripura, Agartala and the matter was transferred to the Court of Ld. Addl. District Judge, Court No.3, West Tripura, Agartala and it was registered as Title Appeal No.36 of 2013.

The learned first appellate Court after hearing the learned counsels of the parties had passed judgment on 02.03.2017, whereby and whereunder the judgment and decree passed by the learned trial Court were upheld and affirmed.

Being aggrieved by and dissatisfied with the said judgment dated 02.03.2017, the appellants have preferred the present second appeal.

On admission of the present second appeal, this Court had formulated the following substantial question of law, which is as under:

"Whether for the courts below have read the said Survey Commissioner's report dated 03.03.2016 properly to ascertain the issue that has been raised in the judgment and order dated 27.07.2015 delivered in RSA 85 of 2011?"

Since the learned counsel for the appellants did not appear before this Court despite repeated calls, I have taken note of the "grounds" stated in the memorandum of the present appeal filed by the appellants. The following grounds are agitated before this Court by the appellants for consideration:

"GROUNDS

For that the 1st appellate Court and the Ld. Trial Court erred in both law and fact and wrongly held that the suit land falls within the 15 gandas of land gifted to Kalyani Prava Chanda, when Survey Commissioners report is totally different.

For that the Ld. Court below failed to appreciate and to interpret the Survey Commissioner's Report as a whole and its totality, and taking a que of a particular paragraph where description of the suit land given as per them plaint held that the same is the findings of the Survey Commissioner and misconstruing the Report as a whole passed the decree.

For that the Ld. Court below failed to appreciate that the appeal is the continuation of the suit and the appellants objection by raising the point as the Survey Commissioners report is vague and speaks a different fact can be considered that it is not objected.

For that the Trial Court failed to appreciate the Survey Commissioner's report prima-facie is vague and can not be acceptable having inherent latches and thus faulty, and the decree of the suit based on the said report is totally miscarriage of justice."

Having perused the aforesaid grounds, I find that the observations made by the first appellate Court that in spite of affording opportunity to the present appellants to file written objection, the appellants did not think it necessary to file any objection. In furtherance thereof, though the present appellants were duly represented and participated in the hearing on the report of the Survey Commissioner through a Ld. Counsel but, it was only orally submitted that the report was vague. There is no reflection in the orders passed by the learned trial Court or by the appellate Court that the defendant-appellants at any point of time had pointed out or identified in what manner the report suffered from infirmity.

Mere oral submissions without identifying the nature of vagueness and identifying the area of vagueness, the report of the Survey Commissioner shall not be thrown out. It is the obligation and responsibility on behalf of the appellants, if he wants to confront or contradict the report of the Survey Commissioner, then, he/she is to specifically assert by filing written objection against the report of the Survey Commissioner by way of making categoric statements in regard to procedural defects, if any or the areas of infirmities. The party to the suit claiming a particular finding and the decision thereon has to justify that the Courts below had taken into consideration irrelevant material and ignores the relevant material and the law. In the instant suit, the appellants have miserably failed to agitate as to how the Survey Commissioner while furnishing his report dated 03.03.2016 has failed to properly ascertain the issue that has been raised in the judgment and decree dated 27.07.2015 delivered in RSA No.85 of 2011.

Even from the grounds taken in the Memo of Appeal, I do not find that the appellants could identify the areas where the Survey Commissioner had committed the error. In the grounds also, it is stated that the report of the Survey Commissioner is vague, without any further clarification.

The Courts below did not find any defect or error in the proceeding of the Survey Commissioner. The only issue raised in this second appeal is that the report of the Survey Commissioner is vague and not acceptable. The report of the Survey Commissioner and the findings given by both the Courts below on the reports of the Survey Commissioner is purely a question of facts. That part, the discussions and findings on the report of the Survey Commissioner by the Courts below are based on facts and no question of law is involved.

The report is prepared on the basis of the ascertainment of certain facts upon field verification and local investigation in terms of the direction of the Court by adopting certain scientific methods. Survey Commissioner possesses requisite expertise for this purpose. He, being appointed by the Court acts as eyes of the Court. A party contradicting any of the findings in regard to measurements of area or any of the facts which are subject in dispute must identify the defects or impropriety of the Survey Commissioner. Such identification contradicting such fact in the report must be specific and shall not suffer from any ambiguity. Mere vague and omnibus statement criticizing the report of Survey Commissioner would not make the report bad in any manner whatsoever.

The object of the local investigation under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 is to obtain evidence which from its peculiar nature can best be had from the spot itself. Such evidence enables the Court to properly and correctly understand and assess the evidence on record. It clarifies and explains any point which is left doubtful on the evidence on record. Further, object of appointment of such commissioner is not to collect evidence but to elucidate the matter which are local in character and which can be done only by local investigation at spot.

In my considered view, the report of the Survey Commissioner being the long drawn process and the observation and findings being made after careful examination, it should not be interfered with except upon very clearly defined and sufficient grounds.

In the case of Chandan Mull Indra Kumar & Ors. vs. Chiman Lal Girdhar Das Parekh & Anr. reported in AIR 1940 Privy Council 3, a three Judge Bench has approved the finding of the learned trial Court observing that:

"It has been laid down that interference with the result of a long and careful local investigation except upon clearly defined and sufficient grounds is to be deprecated. It is not safe for a Court to act as an expert and to overrule the elaborate report of a Commissioner whose integrity and carefulness are unquestioned, whose careful and laborious execution of his task was proved by his report, and who had not blindly adopted the assertions of either party."

After considering the report, both the Courts below in their findings came to the conclusion that the report of the Survey Commissioner did not suffer from any error or infirmity. Mere assertion that the report is "vague and not acceptable" without assigning any cogent reason and sufficient grounds, would not render the report erroneous and should not be treated the same that it suffers from misconception of facts and law. Further, I iterate that it is a pure question of fact that too has to be brought to the notice of the Court at the first instance by way of filing written objection, which, the appellants had miserably failed to do. On this aspect also, the instant appeal is bereft of merit.

Having considered the entirety of the matter as discussed above, in my opinion, the instant second appeal is devoid of merit, and accordingly, the same is dismissed. However, there shall be no order as to costs.

In view of the judgment, any order in interim, if passed by this Court, stands vacated.