Case Note & Summary
In this civil appeal, the Supreme Court considered a property demarcation dispute between purchasers of adjacent premises in Calcutta. The appellants had purchased Premises No. 22/1C, Monoharpukur Road, from Ballygunge Estate Pvt. Limited in a liquidation court sale, with the sale deed executed on 16 August 1974. The respondents owned Premises No. 22/1D, purchased from the same company as early as 13 January 1953. The dispute arose when the appellants sought demarcation of their purchased property; the respondents alleged that under the guise of demarcation, the appellants attempted to encroach upon and dispossess them from a portion they had occupied since 1953. The appellants initially applied to the Liquidator on 23 August 1977 for leave of the Company Judge to demarcate their property, which was allowed. The respondents then sought an injunction, leading to proceedings before a learned Single Judge of the Calcutta High Court. After considering various orders and reports, the Single Judge found that the appellants had made two holes in a wall to access the respondents' portion and had raised a wall, thereby dispossessing the respondents despite an existing injunction from the Alipore Court. Consequently, the Single Judge passed an order of mandatory injunction directing closure of the holes, removal of obstacles, and restoration of possession to the respondents, to be supervised by Special Officer Anajn Chakraborty. The appellants appealed to the Division Bench (Appeal No. 340 of 1988). On 20 May 1988, the Division Bench ordered status quo. On 12 November 1991, the Division Bench appointed Suhrid Roychowdhury as a new Special Officer, directed him to take possession of disputed rooms, allow parties to occupy subject to undertakings, and appoint a surveyor to demarcate Plot Nos. 3 and 4 on the basis of conveyances and original documents. Pursuant to this, the Special Officer appointed Bhupendra Mohan Saha as surveyor by consent of parties, and after demarcation, submitted a report (date stated as 20 April 1992 in one part and 28 April 1992 in another). The respondents filed objections, but these were dismissed on 1 September 1992 when no one appeared for the applicants. Nevertheless, another Division Bench dismissed the appeal on 25 September 1995, directing the earlier Special Officer Anajn Chakraborty to hand over possession to the respondents, thereby ignoring the later Special Officer's report and the consent survey. The appellants contended before the Supreme Court that the Division Bench committed a gross error by not considering the later Special Officer's report and the consent surveyor's survey, and by giving effect to the earlier order despite the subsequent appointment. The respondents argued that pending litigations for title and possession made the demarcation order inappropriate, and that the appellants had been found encroaching during proceedings. The Supreme Court, without expressing any opinion on the merits, held that the Division Bench's order could not be sustained because it ignored relevant material. The Court observed that the Special Officer's report and the consent-based survey were important evidence that could not be ignored. Additionally, since the Division Bench had itself appointed Suhrid Kumar Roychowdhury as Special Officer and that appointment had not been reversed, the subsequent bench could not direct the earlier Special Officer to act. The non-consideration of this vital evidence vitiated the ultimate conclusion. Accordingly, the Supreme Court set aside the Division Bench judgment dated 25 September 1995, allowed the appeal, and remitted the matter to the Calcutta High Court, requesting the Chief Justice to constitute a Division Bench headed by the Chief Justice or the senior-most judge to dispose of the appeal in accordance with law after considering the Special Officer's report and the survey by Bhupendra Mohan Saha. No order as to costs.
Headnote
A) Civil Procedure - Appellate Court's Duty to Consider Material Evidence - Special Officer's Report and Consent Survey - Non-consideration of material evidence vitiates appellate decision - Code of Civil Procedure, 1908 - The Division Bench appointed a Special Officer to demarcate plots, who in turn appointed a surveyor by consent; the Special Officer submitted a report based on the survey, and objections filed to that report were dismissed. The Division Bench, however, ignored this evidence and instead relied on an earlier report and order of the learned Single Judge. Held, ignoring the Special Officer's report and consent survey constituted a failure to consider vital evidence, vitiating the Division Bench's conclusion; the appeal was remitted for fresh consideration after considering that report. B) Civil Procedure - Effect of Subsequent Appointment of Special Officer - Later Order Supersedes Earlier - Direction must align with current appointment - Code of Civil Procedure, 1908 - The Division Bench had appointed Shri Suhrid Kumar Roychowdhury as Special Officer on 12 November 1991, which superseded the earlier appointment of Shri Anajn Chakraborty by the learned Single Judge. The subsequent Division Bench, however, directed the earlier Special Officer to hand over possession, contrary to the subsisting appointment. Held, such direction was unsustainable; the High Court must consider the report of the later Special Officer and proceed in accordance with law.
Issue of Consideration
Whether the Division Bench of the Calcutta High Court erred in ignoring the Special Officer's report based on a consent-appointed surveyor and the survey report, which were material evidence; and whether the Division Bench could direct the earlier Special Officer to hand over possession when a later Special Officer had been appointed by the Division Bench itself.
Final Decision
Appeal allowed; judgment of Division Bench dated 25 September 1995 in Appeal No. 340 of 1988 set aside; matter remitted to Calcutta High Court with request to Chief Justice to constitute a Division Bench headed by Chief Justice or senior-most Judge; High Court to dispose of appeal in accordance with law after considering the Special Officer's report and survey by Bhupendra Mohan Saha; no order as to costs.
Law Points
- A court must consider material evidence
- especially a Special Officer's report based on a consent-appointed surveyor
- before deciding
- ignoring such vital evidence vitiates the ultimate conclusion
- a later order appointing a Special Officer supersedes an earlier appointment
- and any direction must be consistent with the subsisting appointment
- appellate courts must examine all relevant material before disposing of an appeal
