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1999 DIGILAW 73 (HP)

RATTANI v. DHARAM CHAND ALIAS DHARMAN

1999-05-19

R.L.KHURANA

body1999
JUDGMENT R.L. KHURANA, J.—This Second Appeal has been directed by the defendants against the judgment and decree dated 17.3.1993 of the learned District Judge, Una, affirming the judgment and decree dated 28.2.1989 of the learned Sub Judge 1st Class (I), Amb. 2. Briefly stated, the facts of the present case are these. The plaintiffs are the owners of the land comprising of Khasra No. 1866 of village Mawa Syndhian. The defendants own the adjacent land comprising of Khasra Nos. 1867 and 1849. The plaintiffs filed a suit for a permanent injunction seeking to restrain the defendants from interfering with their land comprising of Khasra No. 1866 and from encroaching upon a part of this land denoted as ABEF in the site plan attached to the plaint and also for restraining the defendants from cutting and removing mango and other trees from such land. In the alternative, the plaintiffs have sought possession of the land measuring 0-16 marlas shown as ABEF in the site plan. 3. The defendants, while resisting the suit denied having ever interfered with the plaintiffs land. It was, however, pleaded that in case any part of the land belonging to the plaintiffs is found in their possession, they have acquiesced title thereto by way of adverse possession. 4. On the pleadings of the parties, issues were framed on 5.6.1985 by the learned trial Court and on the same day on the request of the plaintiffs, Shri Ram Rattan, a retired Consolidation Officer was appointed as a Local Commissioner to report if the portion shown as ABEF forms part of the land comprising of Khasra No. 1866. The Local Commissioner submitted his report dated 12.10.1985. As per this report, land denoted by ABEF was found to be a part of Khasra No. 1866 and the defendants were found to have encroached thereon. 5. Objections to the report were preferred by the defendants on 8.8.1986. Reply thereto was filed by the plaintiffs on 28.4.1987, when the following order came to be passed by the learned trial Court :— "Reply to objections filed. Copy supplied. However, it is decided at this stage that the report of the Local Commissioner will be considered alongwith the evidence of the parties. Hence to come up for plaintiffs evidence on filing P.F. and D.M. etc. within 3 days on 24.8.1987." 6. Copy supplied. However, it is decided at this stage that the report of the Local Commissioner will be considered alongwith the evidence of the parties. Hence to come up for plaintiffs evidence on filing P.F. and D.M. etc. within 3 days on 24.8.1987." 6. After recording evidence of the parties, the learned trial Court decreed the suit of the plaintiffs for possession of the land ABEF in terms of the report of the Local Commissioner. The findings of the learned Trial Court were affirmed in appeal by the learned District Judge. 7. In the present Second Appeal, the following substantial question of law arises :— "Whether the report of the Local Commissioner can be relied upon and treated as evidence without first deciding the objections made by the defendants to the correctness of such report/ 8. I have heard the learned Counsel for the parties and have also gone through the record of the case. 9. There is no denying that objections to the report of the Local Commissioner were preferred by the defendants and such objections have not been decided. 10. Rule 10 of Order 26, Code of Civil Procedure, insofar as it is material for the present case reads :— "(1)............................................... (2) Report and depositions to be evidence in suit—The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation. (3) Commissioner may be examined in person.—Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit." 11. A plain reading of sub-rule (2) above shows that report of the Commissioner would be evidence in the proceedings in which the Commissioner is appointed. The Court has the power and the parties have a right to examine the Commissioner personally in Court touching any matter referred to by him in the report or as to the manner in which he had carried out the investigation. 12. The Court has the power and the parties have a right to examine the Commissioner personally in Court touching any matter referred to by him in the report or as to the manner in which he had carried out the investigation. 12. It was contended that the defendants having filed the objections to the report, the learned trial Court was bound to consider and decide the objections before relying on such report. 13. In Re P. Moosa Kutty [AIR 1953 Calcutta 717], it has been held that it is open to a party to show that the report of the Commissioner is incorrect and that it is not entitled to credence. 14. In Harbhajan Singh v. Smt Shakuntala Devi Sharma and another [AIR 1976 Delhi 175], where the objections filed by the tenant to the report of the Commissioner were not considered by the Court, it was held that it was obligatory for the Court to deal with such objections before relying upon the report. 15. The Orissa High Court also in Kalandi Swain and others v. Braja Kishore Dass and others [AIR 1980 Orissa 98], has held that it was the duty of the Court to dispose of the objections filed by a party against the report of the Commissioner before proceeding to dispose of the case on merits. 16. I am in full agreement with the aforesaid views of the High Courts of Delhi, Calcutta and Orissa. 17. Following the ratio laid down in the above referred to cases, it is held that the report of the Local Commissioner cannot be relied upon and treated as evidence under Order 26, Rule 10 (2), Code of Civil Procedure without first deciding the objections made thereto by a party. The question of law, formulated above, is answered accordingly. 18. In the present case also a grave error has been committed by the two Courts below in placing reliance on the report of the Local Commissioner without disposing of and deciding the objections preferred thereto by the defendants. 19. A contention was raised by the plaintiffs and the case can be decided on merits on the evidence coming on the record even if the report of the Local Commissioner is ignored. I dont find force in the contention of the plaintiffs. 19. A contention was raised by the plaintiffs and the case can be decided on merits on the evidence coming on the record even if the report of the Local Commissioner is ignored. I dont find force in the contention of the plaintiffs. If the report of the Local Commissioner is ignored, then from the evidence led by the parties it cannot be said that laid ABEF forms part of Khasra No. 1866 or that the same is in possession of the defendants. 20. As a result, the present appeal is allowed. The judgments and decrees of the two Courts below are. set aside and the suit, being suit No. 836/84 is remanded to the learned trial Court for deciding the same afresh after disposing of the objections preferred by the defendants to the report of the Local Commissioner after affording an opportunity to the parties to produce such evidence as they may wish to produce with regard to the objections to the report of the Local Commissioner. 21. The parties through their Counsel are directed to appear before the learned trial Court on 7.6.1999. Records be returned forthwith so as to reach well before the date fixed. 22. Before parting it may be observed that the suit pertains to the year 1984. Therefore, the learned trial Court shall make all endeavour to dispose of the suit by 31st December, 1999. Appeal allowed.