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1998 DIGILAW 560 (MP)

Nagaram v. Prabhu

1998-08-04

FAKHRUDDIN

body1998
JUDGMENT This appeal is against the judgment and decree dated 7.11.97 passed by Additional District Judge to the Court of District Judge, Sheopur Kalan, District Morena in F.A. No. 27-A/94 confirming the judgment and decree passed by Civil Judge, Class-I, in Civil Suit No. 1-A/89 decided on 12.11.94. Briefly stated the facts are that the plaintiff/appellant filed a suit for injunction in respect of agricultural land survey No. 404, area 19 Bighas 12 Biswas situated at village Banwada. The plaintiff contended that he is owner of the land survey No. 404, area 19 Bighas 12 Biswas and is in possession. The plaintiff contended that before chakbandi he had 22 Bighas 14 Biswas land and out of which 3 Bighas land was given to different persons in chakbandi and in exchange 1 Bigha 18 Biswas of land was given to him. The land which was given to plaintiff-appellant by the State in chakbandi was Padat Kabil Kasht land which was adjacent to the land of the plaintiff. The plaintiff contended that after exchange, land 1 Bigha 18 Biswas was mutated in the name of plaintiff and demarcation was done. The plaintiff contended that the respondents are creating hurdles in agricultural activities and restraining the plaintiff-appellant from doing agricultural work on the land. The respondents/defendants denied the title of the plaintiff over the disputed land. The trial Court dismissed the suit. Plaintiff-appellant preferred first appeal which was dismissed. Counsel for the appellant contended that in this case demarcation was done on 19.11.1974 and Panchanama is Ex. P-3. Its receipt is Ex. P-4. Ex. P-5 in order-sheet. The trial Court has considered the same in para 10 of the judgment and has rejected the demarcation on the ground that the plaintiff himself admitted in para 8 of his cross-examination that the defendant was not given notice of this and he was not present there at the time of demarcation. Counsel for the appellant contended that the Court had appointed commissioner on 1.5.1993 and the report of the said commissioner was received on 28.6.93. Objection was submitted on 16.7.1993 by the defendants but the said objection has not been decided. The lower appellate Court did not consider this report. It held that as the application for appointment of the commissioner was filed after the closure of evidence it goes to show that the commissioner was appointed to fill up the lacunae. Objection was submitted on 16.7.1993 by the defendants but the said objection has not been decided. The lower appellate Court did not consider this report. It held that as the application for appointment of the commissioner was filed after the closure of evidence it goes to show that the commissioner was appointed to fill up the lacunae. Counsel for the appellant contended that this approach which has been adopted by the lower appellate Court is illegal and contrary to law. Counsel for the appellant submitted that appointment of the commissioner can be made at any stage of the proceedings, the requirement is for the satisfaction of the Court and even at the appellate stage in suitable cases the commissioner is appointed. In this connection reliance is placed in a decision of this Court reported in 1974 MPLJ Note 65 (Smt. Uttami Bai v. Chhaganlal) wherein it is held that the appointment of a commissioner to take measurement is the invariable rule when there is a dispute as to boundary or a dispute as to identity of land or a dispute as to encroachment. The object of local investigation in such cases is not so much as to collect evidence which can be taken in Court, but to obtain evidence which from its very nature can only be had on the spot. A Division Bench of this Court in 1975 JLJ 440 (Durga Prasad v. Parveen Foujdar) has held that encroachment has to be determined by appointment of a Commissioner. After hearing the counsel for the parties and perusal of the record, in the opinion of this Court, the lower appellate Court committed grave error in holding that the report of the commissioner cannot be gone into because it has been appointed after the evidence is recorded. The second substantial question of law framed on 21.4.1998 is answered in favour of appellant to the extent that the lower appellate Court did not consider the commissioner's report. Counsel for parties submitted that in view of this, it is necessary to go into other substantial questions which are regarding misreading of evidence etc. Counsel for the parties in the facts and circumstances of the case prayed that a direction may be given to the lower appellate Court for appointment of the commissioner afresh to take measurement. Counsel for parties submitted that in view of this, it is necessary to go into other substantial questions which are regarding misreading of evidence etc. Counsel for the parties in the facts and circumstances of the case prayed that a direction may be given to the lower appellate Court for appointment of the commissioner afresh to take measurement. It is jointly prayed that some Revenue Officer whom the lower appellate Court may deem fit and proper be appointed as commissioner. Having considered the facts and circumstances, in the opinion of this Court, ends of justice would serve if a direction is given to the lower appellate Court to appoint a revenue officer as commissioner for taking measurement of the land in question. It is made clear that the notice shall be given to the parties and their respective counsel who shall co-operate in the matter. The Commissioner shall visit at the spot and inspect the disputed land. A report about inspection shall be submitted before the lower appellate Court by the Commissioner. After the report is filed, the lower appellate Court shall give an opportunity to the parties to file objections, if any. The lower appellate Court after affording opportunity of hearing to the parties shall record finding and decide the case in accordance with law, as expeditiously as possible on its own merits without being influenced by any of the observations made above. In view of what has been stated above, the appeal is allowed. The judgment and decree passed by the lower appellate Court are set aside and instead the matter is remanded back to the lower appellate Court for deciding it afresh. No costs.