JUDGMENT : Ajoy Kumar Mukherjee, J. 1. Petitioner/defendant challenged herein order no. 91 dated 12.02.2020 passed by learned Civil Judge, (Junior Division), 2nd court Ranaghat, Nadia in Title Suit No. 78 of 2010. By the order impugned learned court below accepted local investigation Commission report provisionally and fixed the next date for hearing argument of the suit. 2. The brief background of the present case is that one Kumar Krishan Mondal since deceased, father of the petitioner and the original opposite party no. 1 (predecessor of present opposite parties) was the absolute owner of the land measuring about 8.25 decimal in plot no. 452 by way of deed of conveyance dated 24th August, 1955. The said opposite party no. 1, since deceased purchased 5 decimal of the land of the suit property out of said 8.25 decimal of the land from his father aforesaid Kumar Krishna Mondal by a registered deed dated 10.07.1969. Thereafter the said Kumar Krishna died intestate leaving behind legal heirs i.e. the plaintiff/opposite party no.1 herein, defendant/petitioner herein and another son Bimal Mondal and his widow and two daughters who jointly inherited the remaining 3.25 decimal of land of their father in the suit plot. 3. It is submitted that on the Eastern side of the suit property there is a road namely Fulia Station Road and on both sides of the said road, there is road side land flank and that the frontage of the opposite party no.1 is 24ft wide and the opposite party No.1/plaintiff has a right of ingress or egress through the said 24 feet frontage from his residential house. It is further alleged in the plaint that the petitioner/defendant has occupied and has constructed a shop room in front of the residential house of the opposite party occupying the said road side land, which is causing extreme difficulties for the plaintiff/original opposite party no. 1 and his family members to ingress and egress of his own residential house through the said road side land/road flank. It is further alleged that from the very beginning of the construction of the said shop room, the original opposite party no. 1 raised his objection but the petitioner never paid any heed. 4. In the aforesaid background the original opposite party no. 1 as plaintiff instituted Title Suit no. 78 of 2010 against the defendant/ petitioner. In the said suit plaintiff/opposite party no. 1 raised his objection but the petitioner never paid any heed. 4. In the aforesaid background the original opposite party no. 1 as plaintiff instituted Title Suit no. 78 of 2010 against the defendant/ petitioner. In the said suit plaintiff/opposite party no. 1 filed an application under Order XXVI Rule 9 of the Code of Civil Procedure for local investigation commission and learned Trial Court allowed plaintiff’s aforesaid prayer. Thereafter learned investigation commissioner after investigation submitted his report on 22nd September, 2014. After more than three years of filling report by the commissioner, the petitioner herein filed a written objection before the Trial Court against the local investigating commissioner’s report on several grounds and thereafter petitioner herein also cross examined the learned commissioner. 5. Learned court below after the examination passed the impugned order, whereby he accepted the investigation commissioner’s report provisionally. 6. Being aggrieved by the said order Mrs. Deblina Lahiri learned counsel appearing on behalf of the petitioner submits that the court below while accepted provisionally the commissioner’s report has made some finding which are contrary to the admissions made by learned advocate commissioner in the course of cross examination. Mrs. Lahiri further argued that the Trial Court while passed the order had placed reliance upon this High Court’s judgment in M/s Roy and Co. and Another Vs. Smt. Nani Bala Dey and others reported in AIR 1979 Cal 50 , but learned court below has completely overlooked the fact that where commissioner’s integrity or carefulness is not questioned and where leaned commissioner did not blindly accept the assertion or either party, then the court should not act as an expert and overrule the commissioner’s report. However in the present case both the integrity and carefulness of the Advocate Commissioner has been questioned by the defendant/petitioner, which finds its strength and justification from the cross examination of the Advocate Commissioner read with his report. Therefore said case law has got no application in the present context. 7. She further argued that leaned Trial court in accepting the flawed report of the Advocate Commissioner has not only applied an erroneous proposition of law, but has also proceeded to render the findings, which unless set aside by this Court shall operate as constrictive res judicata against the petitioner/defendant at the time of final argument of the suit. 8. 7. She further argued that leaned Trial court in accepting the flawed report of the Advocate Commissioner has not only applied an erroneous proposition of law, but has also proceeded to render the findings, which unless set aside by this Court shall operate as constrictive res judicata against the petitioner/defendant at the time of final argument of the suit. 8. Relying upon the ratio laid down in Shalini Shyam Shetty and Another Vs. Rajendra Sankar Partil reported in (2010) 8 SCC 329 . Mrs. Lahiri further contended that High Court can interfere in the exercise of his power of superintendence under Article 227 of the Constitution of India, when there has been a patent perversity in the order of the Court below or where there has been a gross and manifest failure of justice which is explicit in the present case. She further submitted that the present case being one where inspite of there being absolute errors on the face of the report submitted by the investigating commissioner, where he has not only not adopted the right methods for conducting the local investigation commission but also had admittedly acted in excess of the writ issued to him, which caused grave injustice to the petitioner. In this context she relied upon case reported in (1954) 1 SCC 51, (2011) 12 SCC 600 . Referring another judgment in Gopal Behera and others Vs. Lokanath Sahu and others reported in AIR 1991 Ori 6 , he contended that the report of the commissioner is an item of evidence to be considered by the court along with other evidence taken by him. Under sub-rule (3) of Rule 10, the court is empowered to direct further enquiry to be made as it thinks fit, in case for any reason the court is dissatisfied with the proceeding of the commissioner. Accordingly she argued that the report of the commissioner together with the evidence recorded by him is legal evidence in the suit but the evidence alone without the report of the commissioner cannot be received as evidence in the suit. Therefore in a case where objection is raised to the report of the commissioner the court has to be satisfied that the local investigation was complete and free from error before he accepts the report. Therefore in a case where objection is raised to the report of the commissioner the court has to be satisfied that the local investigation was complete and free from error before he accepts the report. She further contended that in the present context there are serious discrepancies between the statement made by the commissioner in court and the contents of the report or the evidence collected during local investigation commission and it will not be safe to conclude that the report is free from error or it is reliable or acceptable. Therefore if a defective report is accepted brushing aside the serious discrepancies in the evidence of the commissioner and his report and materials recorded during local investigation, such a report instead of assisting the court is likely to mislead him. Her further grievance is that the order accepting the report is cryptic in nature and had not dealt with the objections raised by the petitioner/defendant and/or the cross examination of the advocate commissioner, since there is no reflection in the order as to how the court below as dealt with the objections of the petitioner/defendant. Moreover the acceptance of the report by the court below is such that there shall be a constructive res judicata against the petitioner in raising the points of dispute later at the stage of argument. The order impugned is therefore liable to be set aside and a direction may be made to appoint another commissioner to carry out the commission work afresh following due process of law and practice. 9. Mr. Jit Ray learned counsel appearing on behalf of opposite party no. 1 submits that all the objections raised by the petitioner herein are completely baseless and do not have any substance to stand at all. He further submits that it is settled law that the report of learned commissioner is not the gospel’s truth and the same can be counter mandated by providing evidence to the contrary. He further submits that petitioner after being failed to countermand commissioner’s report by providing evidence before the trial court has purposefully filed the said objection against commissioner’s report after three years from the date of submission of the report by the commissioner. 10. Mr. He further submits that petitioner after being failed to countermand commissioner’s report by providing evidence before the trial court has purposefully filed the said objection against commissioner’s report after three years from the date of submission of the report by the commissioner. 10. Mr. Ray further argued that learned commissioner conducted the commission work by using scientific method and proper exercise /instrument and after consulting relevant L.R and R.S. Map and deeds documents and the respective case of the parties by recording proper measurement in the filed book and he selected fixed points after proper test by using necessary instrument in presence of the parties, including the petitioner who helped the Learned Commissioner to identify the suit property and the map was prepared in presence of the petitioner himself. He further submits that the petitioner never raised objection at the time of field work and not only that during cross examination, the petitioner did not specifically confront the commissioner with specific suggestion on the adoption of methodology, use of accessories and appropriate method of super imposition of map relating to the investigation work touching the points referred for investigation work Accordingly he submits that the petitioner cannot raise any objection at this stage as the petitioner is bound by the principle of estopple and acquiescence in turning back and challenging the commissioner’s report on the ground that the commissioner did not use proper method since he himself participated in the investigation work and also helped to point out and identify the suit property to the learned commissioner. Accordingly he submits that court below has not committed any mistakes in accepting the report which is now part of the record and evidence in the suit. However the evidentiary value will be considered by the trial court at the time of hearing of the suit and as such the acceptance of report provisionally by the court below cannot be the subject matter of challenge under Article 227 of the Constitution of India. Infact the court below considering all aspects of the matter had passed the order impugned recording sufficient reason and also relying upon the judgment reported in AIR 1979 Cal 50 . Accordingly he has prayed for dismissal of the present application. Decision 11. I have considered submissions made by both the parties. 12. Infact the court below considering all aspects of the matter had passed the order impugned recording sufficient reason and also relying upon the judgment reported in AIR 1979 Cal 50 . Accordingly he has prayed for dismissal of the present application. Decision 11. I have considered submissions made by both the parties. 12. On perusal of the order impugned its appears that the court below had accepted the report of the investigation commissioner provisionally. The only point raised by the petitioner in the present application to adjudicate is whether court below was justified in accepting the report provisionally ignoring all the defect and deficiencies as pointed out by the defendant/petitioner in his objection dated 1st November, 2017. 13. Admittedly the petitioner was present during commission work and he also availed the opportunity to file written objection and to cross examine learned commissioner. However petitioner’s grievance is that since he has pointed out certain discrepancies and defect in his written objection and also during cross examination, so the court below ought not to have accepted the commissioner’s report even provisionally. 14. Needless to say that a report submitted by a commissioner is only evidence like any other evidence in the suit and it is no way binding on the court. No court can take final view regarding report of a commissioner till the arguments on evidence is over and the court applied his mind to such evidence in the light of report submitted by the commissioner. Since a report of the commissioner should not be made sole basis and foundation of the final order but is also depended on other evidence on record, the court has full power to arrive at its own conclusion. Infact mere admission of a document in evidence does not amount to its proof because admissibility of document is one thing and its probative value is quite different. This two aspects cannot be combined. Even in appropriate cases a document might have admitted by the court and yet may not carry any conviction and weight and its probate value may be nil. Accordingly the court below has accepted or admitted the document in evidence, does not mean that the entry contained therein does not require to be examined in the facts and circumstances of the present case. Accordingly the court below has accepted or admitted the document in evidence, does not mean that the entry contained therein does not require to be examined in the facts and circumstances of the present case. On the contrary if the document is not admitted in evidence or accepted as an exhibit, then normally court will have no scope to read it in the evidence. 15. Regardingly admissibility of evidence in case of objection raised by the other side , what practice is to be adopted by Trial court, has been laid down by the Apex court in the case of Bipin Shantilal Panchal Vs State of Gujrat and another, reported in (2001) 3 SCC 1 where the Apex court held:- “13. It is an archaic practice that during the evidence-collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fallout of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or the revisional court, when the same question is recanvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings. 14. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings. 14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)” 16. Accordingly the order impugned if judged in the light of Bipin Shantilal Panchal case (supra), it has not resulted in any gross or manifest failure of justice nor has there been any illegality or perversity committed by the court below while passing the impugned order. 17. Beside that the order of provisional acceptance of commissioners report by the learned Trial court is only interim in nature and subject to objection already raised by the other side and as such the approach of the learned counsel appearing for the petitioner that in view of objection raised by her, the court below instead of accepting the report provisionally, ought to have rejected the same with further direction to make fresh local investigation commission by another commissioner is not convincing. If the trial court on preliminary satisfaction about the commissioner’s integrity and carefulness has provisionally accepted the report keeping open the objections raised by the other side for adjudication at the time of final hearing of the suit, I find no material for holding that there was any impropriety which can call for exercising the jurisdiction of this court under Article 227 of the Constitution of India. Infact exercise of power under Article 227 and interfering with the orders of the court or tribunal is restricted to the cases of serious dereliction of duty and flagrant violation of fundamental principle or law or justice, where if the high court does not interfere a grave injustice will remain uncorrected. In my considered opinion no such situation occurred in the present context which calls for interference by this court. 18. However during hearing I am informed that though the report of the commissioner has been accepted provisionally but it has not been marked as exhibit. In such view of the matter the present application being C.O 852 of 2021 is hereby disposed of with a direction upon the court below to mark the impugned investigation commission report along with field notes and connected documents collectively as an exhibit, with objection, following direction made in Bipin Santilal Panchal case (supra) and thereafter court below will give opportunity to petitioner herein to argue in respect of all the objections raised by him in his petition of objection dated 1 st November 2017 to determine the probative value of the report and also to give opportunity to reply thereto by the opposite party herein and thereafter to write judgment considering entire evidence on record at the earliest, since the Suit appears to be pending for more than a decade. Urgent Xerox certified photocopies of this Judgment, if applied for, be given to the parties upon compliance of the requisite formalities.