Sanchayita Lahkar

The Calcutta High Court Single Bench of Justice Biswaroop Chowdhury has ordered a fresh local investigation in a pending property dispute, appointing a Special Officer to supervise a new survey and measurement after finding that the earlier Advocate Commissioner’s exercise and the Trial Court’s acceptance of that report were not sufficiently clear or specific for effective adjudication. The case concerns allegations of encroachment and interference with the plaintiff’s possession and use of the suit property, alongside a request to restrain the defendants from disturbance and to remove construction alleged to have been raised on a portion of the land. The Court noted that while the right to property is not a fundamental right, it remains a constitutional right, and measurement-based commissioner reports in such disputes must be precise to enable the court to decide the controversy.

The proceedings arose from a supervisory petition filed under Article 227 of the Constitution challenging an order of the trial court by which a local investigation report submitted by an Advocate Commissioner was accepted. The dispute originated from a civil suit seeking permanent and mandatory injunction relating to alleged interference and encroachment concerning immovable property described in multiple schedules of the plaint. The petitioners contended that the inspection and survey were fundamentally defective, as the Commissioner failed to relay the relevant C.S. settlement map, did not accurately measure the disputed plots, omitted necessary notations in the case map, and selected erroneous fixed points without identifiable permanent landmarks.

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It was further alleged that the Commissioner relied solely on the R.S. map, despite the plaint referring to C.S. and L.R. records, and failed to prepare any comparative map correlating different settlement records. The Commissioner was cross-examined prior to acceptance of the report and admitted that neither C.S. nor L.R. maps were considered during the investigation.

The respondent opposed the petition, arguing that acceptance of a commissioner’s report was not conclusive, that objections were belated, and that corresponding R.S. and L.R. plot numbers and areas were identical. Reliance was placed on judicial precedents to contend that no interference was warranted under Article 227.

The Court recorded that “High Courts exercising power under Article 227 of the Constitution is not a Court of Appeal” and interference would be justified only if the impugned order was perverse. It reiterated that “the report of the Commissioner is only an evidence and no final view can be taken” at an interlocutory stage.

Examining the scope of the commission, the Court noted that the trial court had directed local investigation strictly in terms of the points mentioned in the application under Order XXVI Rule 9 CPC. It observed that “it is necessary to see that such compliance was made” with the earlier order permitting commission.

On the objections raised, the Court recorded that the Commissioner had not relayed the suit property with the C.S. map and that measurements of specific dag numbers were disputed. It further observed that although the Commissioner claimed to have verified fixed points, “it is not the case that fixed points were selected after discussion with the parties and their Learned Advocate.”

Addressing the contention that the petitioners failed to supply the C.S. map, the Court stated that “when commission work is to be done on the basis of both C.S. map and R.S. map as was prayed for by the plaintiff and directed by the Learned Trial Court it was incumbent upon the plaintiff/opposite party to furnish the C.S. Map.”

The Court stated the nature of the dispute, observing that "Right to property although not a Fundamental right but is a Constitutional Right. A person has right to use and enjoy property lawfully occupied by him without interference by others. Hence when a dispute arises with regard to encroachment of property and interference in the peaceful use and occupation of such property and adjudication of such dispute depends upon measurement of suit property and the report of the commissioner, such report should be clear and specific so that it becomes easy for the Court to arrive at a decision upon considering the said report".

The Court directed that “there should be a commission once again under a special officer to be appointed” in order to carry out a fresh local investigation. It appointed “Mr. Raja Ghosh, Advocate” as the Special Officer to conduct the investigation “once again in terms of Order no. 24 dated 22/08/2017 passed by Learned Civil Judge (Junior Division) 1st Court Katwa in T.S. 78/2015.”

The Learned Special Officer “shall prior to conducting investigation upon holding meeting with parties and their Learned Advocates appoint a surveyor/Survey passed Advocate Commissioner. The Learned Special Officer shall thereafter upon notice fix a date for local investigation” and that “the survey and measurement work shall be under the supervision of the Learned Special Officer.”

“The parties shall furnish the C.S. map and R.S. map before the Special Officer for doing the needful. The issue with regard to the fixed points shall be taken upon discussion with the parties and their Learned Advocates” and further provided that “an amin from office of BLLRO may be engaged for the purpose of taking fixed points with identification mark or otherwise.”

“The Learned Special Officer upon perusing the survey report of the surveyor/survey passed Advocate if satisfied shall enclose the same in his report and submit the same before Learned Trial Court.  The local investigation work should be completed by the Special Officer within 4 weeks from date of communication of this Order, and the report to be submitted within two weeks from date of local investigation.”

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“The Learned Special Officer shall be entitled to a remuneration of Rs. 8,000/- (Rupees eight thousand) to be shared equally by the parties” and that “costs of the local investigation shall also be borne by the parties equally. Upon considering the report of the Learned Special Officer if the Learned Court accepts the same the Special Officer shall be discharged.” Upon discharge, “the Special Officer will be entitled to a remuneration of Rs. 2,000/- to be shared by the parties.”

“If the Learned Trial Court thinks further investigation is necessary the Learned Special Officer may be engaged for further investigation with further remuneration which the Court thinks fit. This application under Article 227 of the Constitution of India stands disposed by directing fresh local investigation by Special Officer in terms of the above observation.”

Advocates Representing the Parties

For the Petitioners: Mr. Sounak Bhattacharya, Advocate; Mr. Sounak Mandal, Advocate; Ms. Bipasha Bhattacharyya, Advocate

For the Respondents: Mr. Dyutimoy Pal, Advocate; Mr. Debabrata Das, Advocate; Mr. Debdatta Saha, Advocate; Ms. Mayuri Sil, Advocate; Mr. Tirthankar Nandi, Advocate

Case Title: Jibananda Pal & Anr v Sanjukta Biswas
Neutral Citation: 2026: CHC-AS:71
Case Number: C.O. 2813 of 2023
Bench: Justice Biswaroop Chowdhury