Kalaiarasan And ORS. v. Asif Ali And ORS.

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** SAT/7/2020 Kalaiarasan and others Vs.

Asif Ali and others Ms. Anjili Nag ... for the appellants Mr. KMB Jayapal ... for the respondents April 19, 2023 [SR] Item No.4 This is defendants' second appeal directed against the appellate decree dated January 16, 2020 passed by the Court of learned Additional District Judge, Andaman and Nicobar Islands, Port Blair in Title Appeal No.11 of 2013 thereby affirming the judgment and decree dated February 28, 2013 passed by the learned Joint Civil Judge Senior Division at Port Blair in Title Suit No.27 of 1998 re-numbered as Title Suit No.10 of 2011.

The plaintiffs/respondents in the connected suit prayed for a decree of declaration of their right, title and interest over the suit property which is a single storied wooden built house constructed on the land measuring about 1484 sq.ft, comprised in survey no.229.

The plaintiffs prayed for a further decree of declaration that the defendants have no right, title and interest in the suit property and also prayed for a decree of recovery of possession of the suit property describing the defendants as trespassers therein.

The defendants contested the suit, inter alia, with the defence that their predecessor-in-interest was a tenant under the predecessor-in-interest of the plaintiffs in respect of one room in the ground floor of two storied wooden house standing on Survey No.228 but consequent upon surrender of such tenancy the possession of the said room was handed over and thereafter the said predecessor-in-interest of the defendants constructed a semi permanent residential house on the land comprised in Survey No.229 which the defendants are now possessing, as such neither there is a landlord-tenant relationship between the plaintiffs and the defendants nor there is any privity of contract between them in respect of the suit property.

In view of such defence of defendants, on the prayer of the defendants, an investigation commissioner was appointed in the suit to identify the suit property. The report of the investigation commissioner was proved in the suit. Learned Trial Judge relying on the said report of the investigation commissioner has held that the suit property has been duly identified as Survey No.229. Such finding of the learned Trial Judge is affirmed by the appeal court below

in an appeal filed by the defendants against the judgment and decree of the learned Trial Judge.

Mrs. Nag, learned counsel for the appellants submits that both the Courts below have committed substantial error of law in relying on the commissioner's report as it was not prepared in accordance with law. She submits that the Tehsildar of the Port Blair Tehsil was appointed as the commissioner to investigate the suit property but the same was not done by him instead one K.V.T.Narashimha Shetty did it and he proved the said report as PW-2 therefore irregularities in investigation and in preparation of report thereof vitiates the said report as such the findings of the courts below regarding the identity of the suit property on the basis of the said report is perverse.

We have heard Ms. Nag and have perused the materials on record.

The defendants are claiming that they are possessing the suit property which is a government land and it is not belonging to the plaintiffs. The plaintiffs have proved their ownership over the suit property i.e land measuring about 1484 sq.feets comprised in survey no.229 by producing the register of house site and sketch map, as soon as such title of plaintiffs over the property comprised in said survey no. 229 is proved, they are entitled to recovery the possession of it on the strength of their such title.

The defendants to substantiate their claim produced receipts of payment of water charges and property tax to the Port Blair Municipal Council, letters issued by Municipal authorities and electric bill etc. both the Courts below have rightly held that those documents are not sufficient to prove their said defence of the defendants.

Let us now consider whether there is any irregularity in conducting the investigation of the suit property. It appears from the deposition of PW-2 Shri K.V.T.Narashimha Shetty, a surveyor attached to the Port Blair Tehsil that one Shri N.Shobana Devan was the incharge of Port Blair Tehsil as at the relevant point of time the regular Tehsildar was absent and he conducted the demarcation of the property.

The surveyor attached to the Port Blair Tehsil said Shri Shetty prepared the field report and as PW-2 he proved the signature appearing in the report (exhibit-1), signature appearing on the map (exhibit-2), attested copy of the commissioner's report (exhibit-A) and attested copy of the sketch map (exhibit-B), and those exhibits were admitted without any objection as such it is not open to the defendants to impeach the said exhibits on the said alleged irregularities. Besides both the learned Courts below have placed reliance on the said investigation report and have concurrently found that the suit property has been duly identified, there is no scope in an second appeal under section 100 of Code of Civil Procedure to upset such factual findings.

We therefore hold that there is no such substantial question of law as suggested by Mrs. Nag, is involved in the

present second appeal, consequently SAT/7/2020 is dismissed under Order 41 Rule 11 of the Code of Civil Procedure.

There shall be no order as to costs.

( Krishna Rao, J. ) ( Biswajit Basu, J. )