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2002 DIGILAW 199 (HP)

JEET RAM ALIAS MEET RAM v. SITA RAM

2002-07-12

K.C.SOOD

body2002
JUDGMENT KULDIP CHAND SOOD, J. (Oral) - This petition under Article 227 of the Constitution of India is directed against the orders of learned Sub Judge 1st Class, Nalagarh dated 8th May, 2002 whereby application of the plaintiff-petitioner for appointment of Local commissioner to demarcate the land, subject matter of dispute, was rejected. 2. According to the petitioner, he had filed a suit for permanent prohibitory injunction on the basis of his title and possession over the land, subject matter of dispute. The defendants,, though strangers to the suit land, but owner of the adjoining land, started raising construction without obtaining any demarcation. Such construction was being raised on a part of the suit land. The plaintiff filed a suit seeking restrain on the defendants from encroaching on any part of the land, subject matter of dispute, of the plaintiff. 3. According to the plaintiff-petitioner, he had earlier obtained demarcation through Field Kanungo vide report dated 23rd August, 2001. The plaintiff-petitioner again moved an application for demarcation before the Tehsildar, Nalagarh. The demarcation given by the Tehsildar, Nalagarh, according to the petitioner, was incorrect. He had also made an objection to the demarcation so given. It is in this background that the petitioner-plaintiff moved an application for the appointment of a local Commissioner, which was rejected by the learned trial judge by relying upon State of H.P. vs. Mangat Ram (AIR 1995 SC 665) and the plaintiff-petitioner having no other remedy has filed this petition. 4. I have heard Mr. Sanjeev Kuthiala, learned counsel for the petitioner. 5. Rule 9 of Order 26 provides for the appointment of local Commissioner for the purpose of the local investigation or for elucidating any matter in dispute or for other allied purposes. The object of the local investigation is not to collect the evidence, which can best be taken in the court, but to obtain evidence, which from its very nature can only be gathered on the spot. The local investigation by a Commissioner is, as held by this court in Gain Chand Khatana and others vs. Sh. Inderjit Chohdha (FAO No.. 25 of f2002 decided on May 21, 2002), merely to- assist the court and such report is not binding on the court, which can arrive at its own conclusion on the basis of the evidence on record even in variance to such a report. Inderjit Chohdha (FAO No.. 25 of f2002 decided on May 21, 2002), merely to- assist the court and such report is not binding on the court, which can arrive at its own conclusion on the basis of the evidence on record even in variance to such a report. This court in Shri Gulaba vs. Shri Hari Ram 1998 Sim.L.C. 85 pointed out that the report of the Commissioner has a limited purpose to serve, that is, to appreciate the evidence on record with reference to the report of the commissioner which he saw or investigated on the spot while inspecting the land. 6. Rule 10(2) of order 26 contemplates that the report of the commissioner shall be part of the evidence in a suit and shall form part of the record. Evidentiary weight of a report will depend on the facts j and circumstances of the case and the evidence adduced by the parties on record. Under Sub-rule (3) of Rule 10 if the Court is dissatisfied with the proceedings of the Commissioner or report of the Commissioner, it can direct for further inquiry to be made as the court may think fit. Thus, the court has a discretion to reject the report of the commissioner, if it is not founs or be satisfactory. The court, in my view, is not bound to appoint local Commissioner if there is other material on record. The court can decide the case on the basis of the evidence on record after setting aside the report of any other Local Commissioner which may be on record. 7. In the present case, the learned trial judge noticed, plaintiff-petitioner prayed for the appointment of Local Commissioner on the, ground that the demarcation earlier given by the Tehsildar, Nalagarh was not in accordance with law. The stand of the opposite party was that the demarcation report was obtained by the plaintiff-petitioner himself .and, therefore, there was no necessity for any fresh demarcation. 8. It is well settled that if a suit is filed on the ground that the other party has encroached upon the land of the plaintiff, the plaintiff has to prove his case and show by satisfactory evidence that his land has, so been encroached by the defendant and it is not necessary to appoint Local Commissioner for that purpose. 9. In this case, the plaintiff-petitioner had obtained demarcation twice. 9. In this case, the plaintiff-petitioner had obtained demarcation twice. In the later demarcation obtained from the Senior Revenue Officer (Tehsildar), who is also Assistant Collector IInd Grade, the land of the plaintiff was not found to have been encroached by the defendants. This, demarcation was obtained, urges Mr. Kuthiala, by the plaintiff-petitioner without recourse to the provision of order 26 Rule 9 of the Code of Civil Procedure. If that is so, it was not necessary for the plaintiff to have filed this report in the court. If he was dissatisfied with the report obtained by him, then he could have filed an appeal against the report before the competent Revenue Officer. 10. Mr. Kuthiala, relying upon Sanku Ranga Rao vs. Devi Prasad Sahu and another (AIR 1989 Orissa 21) and John vs. kamarunnissa (AIR 1989 Kerala 78), submits that in the facts and circumstances of this case, the court ought to have allowed the application of the plaintiff-petitioner to ascertain whether the land of the plaintiff infect had been encroached by the defendant or not. 11. In Sanku Rango Rao, the plaintiff had filed a suit against the defendant alleging that the portion of the land of the plaintiff was encroached by the defendant. The plaintiff in that case relied upon the demarcation given by a private commissioner. However, the defendant filed an affidavit of the same Commissioner along with his written statement stating that the defendant infect had not made any encroachment on the land of the plaintiff. This affidavit was contrary to the report of the commissioner given to the plaintiff. It is in these circumstances, the court took a view that the plaintiff could have recourse to the provision of the order 26 Rule 9 of the Code of Civil Procedure to have Local Commissioner appointed by the court. The court referred to Indramani Behera v. Ghanshyam Behera (1960 (2) Cut. LT 398, where it was held that in a case where it is open to the party to take a private Commissioner for ascertaining the particular fact it would not be necessary for the court to do so since the commissioners report whether appointed by the court or privately by a party is an item of evidence and not in the matter. Nevertheless, in view of the fact that the same Commissioner has given an affidavit in opposition to his report, the court allowed appointment of the local Commissioner 12. In Johns case the trial court allowed the appointment of Local Commissioner before the written statement was filed. The contention was raised, in the revision petition that the Local Commissioner could not have been appointed unless the defendant had chance to file the written statement. This contention was repelled and ft was held that such was not the position in law. It was observed that in certain cases, urgent commission may be necessary to avoid any other mischief and the defendants right to have a local Commissioner can not be defeated on the ground that he has not filed the written statement. 13. Mr. Kuthiala, also refers to Payani Achuthan vs. Chamballikudu Harijan Fisheres Development Co-operative Society and others (AIR 13€6 Kerala 276). In this case, the plaintiff had filed a suit for permanent injunction seeking restrain on the defendants from encroaching upon the land of the plaintiff. An application for appointment of Local Commissioner for measurement and demarcation of the land was filed, which was rejected on the ground that neither party had any grievance about the identity of areas in their respective possession and as such it was not necessary to appoint a Commissioner. It is in these circumstances, it was held that in such a situation Local Commissioner ought to have been appointed 14. In the present case, the plaintiff-petitioner filed a suit alleging that a part of his land was being encroached upon by the defendant. He himself obtained demarcation from the competent Revenue Officer (Assistant Collector IInd Grade) who found that there was no such encroachment. As noticed earlier, the demarcation report given by the competent Revenue Officer is final unless it was set aside in the appeal. Section 107 of the HP. Land Revenue Act empowers the Revenue Officer to demarcate the land and define the boundaries. In Gulaba a interpreting the provisions of section 107 of the Revenue Act, it was observed that the Assistant Collector 11th Grade is competent person to effect the demarcation and his report is final unless set aside in appeal. Section 107 of the HP. Land Revenue Act empowers the Revenue Officer to demarcate the land and define the boundaries. In Gulaba a interpreting the provisions of section 107 of the Revenue Act, it was observed that the Assistant Collector 11th Grade is competent person to effect the demarcation and his report is final unless set aside in appeal. It was also observed that even if the Assistant Collector 11th Grade himself states in his report that the demarcation could be got verified from the senior Revenue Officer, such a report cannot be set aside in the revisional power of Financial Commissioner on that ground. 15. Be that as it may, the fact remains that the plaintiff-petitioner obtained a demarcation from the competent Revenue Officer i.e. Assistant Collector 11th Grade (Tehsildar) and thereafter filed a suit. It was for the plaintiff-petitioner to rely or not to rely on that report. It was open to him to show by satisfactory evidence that his land infect has been encroached upon by the defendant under construction being raised by him. As noticed earlier, a report of Local Commissioner is only a piece of evidence in suit. The evidentiary value of such a report depend on the facts and circumstances of each case. Learned Counsel for the petitioner submitted that in the demarcation, given by the Assistant Collector 11th Grade, the lines were not drawn correctly. He could always bring the same to the notice of the trial court by leading appropriate evidence. The trial Court, if satisfied, would be within his power to discard such report. 16. No other point is urged. 17. There is no merit in this petition and the same is dismissed.