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2002 DIGILAW 342 (HP)

DITAR SINGH v. WARYAM SINGH

2002-12-17

K.C.SOOD

body2002
JUDGMENT Kamlesh Sharma (Oral) :- The appellant is the defendant whereas the respondent is the plaintiff and they will be referred to as such in this judgment. The defendant is aggrieved by the order dated 13.5.2002 passed by the District Judge, Una whereby the appeal of the plaintiff was accepted and the decree and judgment dated 29.8.2000 passed by the Sub Judge 1st Class, Court No. 2, Amb, District Una was set aside and the case was remanded to the Sub Judge for retrial in accordance with law. The Sub Judge list Class had dismissed the suit with cost of Rs.1,000/-. 2. The suit of the plaintiff was for issuance of permanent prohibitory injunction restraining the defendant from interfering in any manner, from raising any sort of construction forcibly, from taking possession, from cutting and removing the trees and changing the nature of the suit land. In the alternative a decree f6r mandatory injunction for demolition of super structure raised during the pendency of the suit was also prayed for. The defendant resisted the suit on the ground that he has raised the wall on the land owned and possessed by him much prior to the institution of the suit and the plaintiff under the garb of the suit intends to take forcible possession of his land which is adjoining to his land. 3. During the pendency of the trial of the suit on 21.1.1997 the plaintiff moved an application under Order 26 Rule 9 C.P.C. for the appointment of Local Commissioner which was allowed and the Tehsildar Amb, was appointed as Local Commissioner to carry out the demarcation on the spot and to find out whether the wall raised by the defendant is on the suit land or not, or whether there was an encroachment on the suit land by the defendant. The Tehsildar, Amb, gave his report Ext. 0W3/A, which was not found satisfactory and vide order dated 3.6.1997 his fresh report was called for after re-demarcation. In this fresh report dated 14.6.1998 Ext. N0W3/A, the Local Commissioner did not find any encroachment on the land in dispute, hence the plaintiff filed objections to it and the Sub Judge 1st Class after framing th6 issues and recording the evidence of the parties, dismissed the objections while deciding the suit. 4. In this fresh report dated 14.6.1998 Ext. N0W3/A, the Local Commissioner did not find any encroachment on the land in dispute, hence the plaintiff filed objections to it and the Sub Judge 1st Class after framing th6 issues and recording the evidence of the parties, dismissed the objections while deciding the suit. 4. On 28.1.2000 the plaintiff moved another application under Order 6 Rule 17 C.P.C for amendment of his plaint to make specific prayer for a decree of possession of a part of khasra No. 1014 by removal of construction raised thereon by the defendant, which application was not allowed on the ground that alternative relief of mandatory injunction for demolition of super structure was already sought for. 5. Feeling aggrieved, the plaintiff filed appeal before the District Judge, which has been allowed by the impugned -order and the case has been remanded for fresh trial on the ground (i) that amendment of the plaint was wrongly rejected and (ii) that the objections to the report of the Local Commissioner were not decided prior to the decision of the suit, as per law laid down in Mst. Rattani and others v. Dharam Chand alias Dharman and others, 2000(1) S.L.J. 52. It is ordered that after giving opportunity to file written statement to the amended plaint and after framing additional issues, if any, on the amended pleadings the trial Court will try the suit afresh. It is also observed that objections to the report of the Local Commissioner would be decided before deciding the suit. 6. We have heard learned Counsel for the parties and gone through the record. We do not find any infirmity in the order of the Sub Judge 1st Class rejecting the application for amendment of the plaint on the ground that the relief sought ,for by way of amendment is already covered by the relief of mandatory injunction initially asked for, i.e. demolition of super structure if raised during the pendency of the suit. In fact the application for the amendment of the plaint at the fag end of the trial of the suit and after the receipt of the report of the Local Commissioner that there was no encroachment on the land in dispute was not bona fide. We may also point! In fact the application for the amendment of the plaint at the fag end of the trial of the suit and after the receipt of the report of the Local Commissioner that there was no encroachment on the land in dispute was not bona fide. We may also point! out that as per the stand taken by the defendant in his written statement filed as far back as on 29.5.1995 he had clarified that he had already raised a wall much prior to the institution of the suit on a piece of land owned and possessed by him. 7. So far the objections to the report of the Local Commissioner are concerned, these were decided by the Sub Judge 1st Class while deciding the civil suit and we do not find any thing wrong in it. Rule 10 of Order 26 C.P.C. reads as under:- "Procedure of Commissioner - (1) The Commissioner, after such Local Commissioner inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court. (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." 8. Sub-Rule (2) provides that the report of the Commissioner and the evidence taken by him is evidence in the suit and forms part of the record. The Court, or with the permission of the Court, any of the parties to these unit 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 carried out the investigation. The Court, or with the permission of the Court, any of the parties to these unit 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 carried out the investigation. Sub-Rule (3) further provides that if the Court is, for any reason dissatisfied with the proceedings of the Commissioner, it may direct further inquiry as it thinks fit. 9. Therefore, from these provisions it is clear that a party is within its right to file objections to the report of the Commissioner and it is obligatory on the part of the Court to deal with such objections before relying upon the report for deciding an issue in the suit. 10. In the case in hand the Sub Judge 1st Class has considered the objections before relying upon the report of the Local Commissioner to come to the conclusion that the plaintiff has failed to prove his case. The District Judge has wrongly drawn the ratio of the judgment of learned Single Judge of this Court in Mst. Rattani and others v. Dharam Chand alias Dharman and others, 2000(1) S.L.J. 52 that "(he trial Court was required to decide the objection filed to the report of Local Commissioner before deciding the main suit itself." In the case before the learned Single Judge, the report of the Local Commissioner was relied upon by the trial Court without disposing of and deciding the objections preferred thereto by the defendants. In this context, the learned Judge has held that "the report of the Local Commissioner cannot be relied upon and tried as evidence under Order 26 Rule 10(2), Code of Civil" Procedure, without first deciding the objections made thereto by a party." We are in full agreement with this legal position but it does not mean that the objections cannot be decided simultaneously with the suit in the same judgment. Whether the sub Judge 1st Class was right in rejecting the objections to the report of the Local Commissioner and relying upon it as a piece of evidence, will be considered by the District Judge while deciding the appeal. 11. Whether the sub Judge 1st Class was right in rejecting the objections to the report of the Local Commissioner and relying upon it as a piece of evidence, will be considered by the District Judge while deciding the appeal. 11. Therefore, for the reasons given hereinabove we do find merit in this appeal and it is allowed and the impugned order dated 13.5.2000 passed by the District Judge, Una is set aside and the case is remanded to the District Judge, Una for decision afresh in accordance with law. However, we may observe that if the plaintiff files an application for additional evidence in support of his contention that the construction has been made over a part of khasra No. 1014 during the pendency of the suit it will be decided in accordance with law. The parties are directed to appear before the District Judge on 27.1.2003. No order as to costs. 12. The records of the Courts below be remitted back to the first appellate Court without any delay.