JUDGMENT D. Raju, C.J.—The above second appeal has been filed by the plaintiffs in C.S. No. 32/84/11/1987 on the file of the learned Sub Judge (III), Dharamsala who succeeded before the learned trial Judge but lost before the learned first appellate Judge challenging the judgment and decree dated 11.11.1992 passed by the learned Additional District Judge (I), Kangra at Dharamsala in C.A. No. 120 of 1988. The plaintiffs filed the suit for a declaration that they are the owners in possession of the land measuring 0-02-12 hectares along with trees standing thereon as entered in Khata No.77 min, Khatauni No. 12 min, Khasra No. 1077/722 present part of Khasra No. 439/1 Jamabandi for the year 1980-81, situated in Mohal Rachhialu Mauja Bandi Tehsil and District Kangra, which according to the plaintiffs was said to have come to the share of the predecessor in interest of the plaintiffs under a partition with different persons and the predecessor in interest of the defendants. The grievance of the plaintiffs is that in the partition with one Rajmal and Buta who are brothers and since died, and who had a joint Khata No. 57 measuring 25 Kanals in which they had half share each which comprised of Khasra No. 739 measuring 7 Kanals and 8 Marias as per Jamabandi 1967-68, in the year 1969-70 Khasra No. 439/1 measuring 3 Kanals and 2 Marias came to the share of the plaintiffs1 predecessor in interest and Khasra No. 439/2 measuring 3 Kanals and 16 Marias fell to the share of the predecessor in interest of the defendants and that mutation No. 534 was also sanctioned on 8.6.1976 on that basis. It is claimed that during the last settlement the land comprised in Khasra No. 439/1 was wrongly included in Khasra No. 1071/722 measuring 0-02-12 hectares and recorded in the ownership and possession of the defendants, although the plaintiffs continued in physical possession of the same. It appears that the plaintiffs moved thereafter an application for correction of the settlement record and by an order dated 3.9.1982 the correction was allowed and mutation No. 88 was sanctioned, but at the same time the defendants thereafter moved a review petition before the Settlement Officer who also appears to have accepted the same by his order dated 9.3.1983. It appears that the plaintiffs moved thereafter an application for correction of the settlement record and by an order dated 3.9.1982 the correction was allowed and mutation No. 88 was sanctioned, but at the same time the defendants thereafter moved a review petition before the Settlement Officer who also appears to have accepted the same by his order dated 9.3.1983. It is in such circumstances the present suit came to be filed both for the relief of declaration of title and also for permanent injunction and in the alternative for the relief of recovery of possession. 2. The defendants filed a written statement contending that the plaintiffs have no locus standi or cause of action to file the suit in question, that the suit is barred by limitation and the plaintiffs are also estopped from asserting the claim. There is no dispute over the fact that the predecessor in interest of the parties, by name, Rajmal and Buta are related as real brothers. The defendants claim to be the onwers in possession of the suit land along with trees thereon and that their possession is adverse to the plaintiffs and their predecessor in interest resulting in perfection title in their favour. 3. On the above claims and counter-claims the suit came to be tried. Apart from the oral and documentary evidence adduced in the suit during the course of the trial, in order to effectively resolve the controversy between the parties, the Naib Tehsildar Kangra was appinted as local commissioner to determine the fact whether field No. 1071/722 is part of old Khasra No. 439/1, after a proper measuring of the whole of Khata No. 66. It appears that the local commissioner submitted a report supporting the claim of the plaintiffs and the said report was acted upon by the learned trial Judge and in the context of appreciation of the materials on record in the light of the repprt by the local commissioner, the learned trial Judge came to the conclusion that the plaintiffs are owners in possession of the suit land, that the suit land fell to the share of the plaintiffs in the partition between their predecessors in interest and the revenue entries showing the defendants to be owners in possession in respect of the suit land are nothing but mere paper entries and the plaintiffs are entitled to a decree as prayed for. 4. 4. Aggrieved, the defendants-respondents filed C.A.No. 120/88 before the District Court and the learned Additional District Judge, Kangra at Dharamsala chose to differ from the finding recorded by the learned trial Judge on the ground that the report of the local commissioner, in the absence of his examination as a witness to prove the same can be of no use and while rejecting the report also came to the further conclusion that the plaintiffs having proved that the land in question before the last survey and settlement formed part of Khasra No. 439/1. Consequently, the first appellate Judge allowed the appeal and dismissed the suit. Hence the above second appeal. 5. The learned Counsel for the appellants, while eleborating the substantial question of law formulated in the appeal at the time of admission contended that the first Appellate Court committed an error in not only rejecting the report of the local commissioner but misconstrued the entries in the revenue record resulting in the rejection of the claim of the plaintiffs and that the materials on record which have been properly adverted to, considered and accepted by the learned trial Judge as also the finding recorded by the learned trial Judge remained unassailable. Mr. Ajay Sharma, learned Counsel for the respondents with equal force and vehemence contended that no exception could be taken to the rejection of the report of the local commissioner for the reason assigned by the first appellate court and that at any rate the plaintiffs having not been able to prove that the land in question formed part of Khasra No. 439/1 prior to the last settlement and in the teeth of the fact that sufficient evidence is available to prove that the land in question was part and parcel of Khasra No. 432 which has come to the share of the appellants in partition, the findings arrived at by the learned first appellate Judge are well merited and do not call for any interference. 6. Both the learned Counsel appearing on either side invited my attention to the relevant portions of the judgment in support of their respective stand. I have carefully considered the submissions of the learned Counsel appearing on either side. Learned Counsel for the appellants relied upon the decisions reported in AIR 1976 All. 121, State of UP. 6. Both the learned Counsel appearing on either side invited my attention to the relevant portions of the judgment in support of their respective stand. I have carefully considered the submissions of the learned Counsel appearing on either side. Learned Counsel for the appellants relied upon the decisions reported in AIR 1976 All. 121, State of UP. v. Smt Ram Sri and another and AIR 1976 Delhi 175, Harbhajan Singh v. Smt Shakuntala Devi Sharma and another, to support his claim that the examination of the local commissioner is not a must to make the report submitted by him admissible in law and that, therefore, the report so submitted being a part of the evidence in the case before the court, the learned trial Judge was right in acting upon the same and the learned first appellate Judge committed a serious error in rejecting the report. It is by now well settled both by virtue of a specific provision engrafted in Rule 10 of Order 26 as also by pronouncement of courts that the report of the commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record, though at the same time the Court or with the permission of the Court any of the party to the suit may examine the commissioner personally in open Court touching any of the matters referred to him or mentioned in his report. It is equally well settled that the evidentiary value of the report will depend upon the nature of the report and other circumstances brought on record. The learned trial Judge, as indicated earlier, has appointed Naib Tehsildar Kangra as the local commissioner to demarcate the land and identify the suit land with reference to the position of the land both prior to the last settlement and thereafter. It is useful at this stage to indicate that the local commissioner appointed for the purpose is not a private person but is the Naib Tehsildar of the very place who has a statutory duty and obligation to maintain the land record. It is useful at this stage to indicate that the local commissioner appointed for the purpose is not a private person but is the Naib Tehsildar of the very place who has a statutory duty and obligation to maintain the land record. It is the said person who has submitted a report after analysing the claim of the respective parties with reference to old and new revenue record that Khasra No. 1071/722 was part of old Khasra No. 439/1 and this report of the local commissioner was said to have been also confirmed by the Court, in the absence of any valid objection. While that be the position, it is not given to the defendants who were also at liberty to summon if they chose to do so for being examined the commissioner who prepared and submitted the report before the Court, but failed to do so to make a grievance about the non-examination of the local commissioner at the appellate stage. Equally, it is not permissible for the learned appellate Judge to wholly rejected the report stating that it was a whimsical one merely on the ground that the commissioner has not been tendered in evidence by the plaintiffs. This only shows that the learned first appellate Judge was oblivious to the provisions of law which leave liberty with either of the parties to summon the local commissioner and the fault lay equally if not more on the defendants also in not taking steps in this regard and that by itself could not have been a ground for rejecting the report. Further nothing precluded the defendants or the learned first appellate Judge to even at that stage order for the examination of the local commissioner if there is any area of doubt left in them. This not having been done, there is hardly any justification in law for the first Appellate Court to have rejected the report of the local commissioner who, as indicated earlier, is not a third person but a competent authority concerned with the maintenance of the revenue record in respect of the land in dispute and his report could not have been rejected in the manner it has been done by the learned first appellate Judge. So far as the merits of the claim of the respective parties are concerned, though the defendants have chosen to initially dispute the factum of partition, the materials brought on record both in the form of oral and documentary evidence sufficiently establish the factum of partition between the predecessors in interest of both the parties who, as noticed earlier, were real brothers and details of the properties which fell to their respective shares. In the teeth of the said materials which have been brought on record and to some extent even by the admission made by the witnesses on behalf of the defendants themselves, the question that requires to be considered is whether the learned first appellate Judge was right in interfering with the finding of fact recorded by the learned trial Judge and whether in justification of the order proper reasons in law were assigned by the first appellate Judge to reverse the finding recorded by the learned trial Judge. In my view the only answer possible could be in the negative and that the learned first appellate Judge has only misdirected himself to the issues not only by rejecting the report of the local commissioner but also mis-appreciating the materials on record with reference to the land allotted in partition entered into between the predecessors in interest of the parties. The categorical finding of the local commissioner which had the confirmation of the court in the absence of any valid challenge made to it, in my view, is a prima facie as also valuable piece of evidence in the matter of determining the rights of the parties in this case. The defendants cannot totally absolve themselves of their obligation to dislodge the finding submitted by the local commissioner. The entire case of the defendants proceeded on an erroneous entry in the settlement proceedings and the learned trial Judge, in my view, has rightly held that such erroneous entry having been found to have been made and proved to be opposed to the actual and real facts, the defendants could not attempt to prove their case taking advantage of such paper entry alone. The learned first appellate Judge, in my view, has committed yet another serious blunder in merely assigning the presumption of truth to the entries in the record of rights to sustain the claim of the defendants overlooking the fact that though the initial truth and regularity of the entries in the record of rights is to be presumed the statute also permit a proof to the contrary making it a rebuttable presumption and in this case the indisputable materials on record not only in the form of oral evidence but also the report of the local commissioner proved the real facts and thereby the initial presumption attached to the entries in the record of rights stood, in my view, sufficiently rebutted. Consequently, the judgment and decree of the learned first appellate Judge is set aside. The appeal is allowed and the judgment and decree passed by the learned trial Judge is restored. No costs. CM.P. No. 108/93 In view of the disposal of the appeal, this application shall also stand disposed of. Appeal allowed.