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2002 DIGILAW 354 (HP)

GURDEV CHAND v. KANTA

2002-12-26

K.C.SOOD

body2002
JUDGMENT Kuldip Chand Sood, J. - This petition arises out of the orders of the learned Sub Judge 1st Class, Dehra dated 8th September, 1999. 2. It appears, the respondent herein, was restrained from interfering with the land comprised in Khasra Nos. 459, 460, 461, except Khasra No. 506/1 (Old), measuring 3 Marias in village Haripur, in Tehsil Dehra of District Kangra by a judgment and decree of the learned Sub Judge, Dehra dated 26th June, 1986 in Civil Suit No. 262/82. The predecessor-in-interest of the petitioner, Shakuntala decree-holder, filed an application under Order 21 Rule 32 of the Code of Civil Procedure for the enforcement of the decree alleging that respondent has raised a Danga in Khasra No. 461 and has raised fence beyond 3 marlas of the land comprising in Khasra No. 506/1 in violation to the decree in her favour. 3. Respondent defended himself by saying that the Danga and the fence were in existence in khasra No. 506/1 which was not subject of decree. Learned trial Court found that the dispute between the ^ parties was whether Danga and fence were over a portion of Khasra No. 461 (earlier Khasra No. 506) or is on Khasra No. 506/1. 4. Learned trial Judge appointed a Local Commissioner who demarcated the suit land and reported about the location of the "Danga and fence" being on the land in dispute. 5. Shri Ram Rattan, retired CO., was appointed as Local Commissioner. The report of the Local Commissioner disclosed that the respondent had encroached upon 2 marlas of the land out of Khasra No. 506 by raising danga and fencing over this land. Learned trial Judge rejected the report of the Local Commissioner on the ground that the Commissioner did not carry the demarcation in accordance with the certified copy of the Musabi. The demarcation was carried on the basis of a copy of the musabi which was not certified or authenticated. 6. It is admitted position, as noticed by the learned trial Judge, that parties had also led oral as well as documentary evidence. Learned trial Judge after recording that dispute between the parties was essentially a boundary dispute concluded that oral evidence led by the parties is of no consequence and the fate of the case would be depend on the report of the Local Commissioner. 7. Learned trial Judge after recording that dispute between the parties was essentially a boundary dispute concluded that oral evidence led by the parties is of no consequence and the fate of the case would be depend on the report of the Local Commissioner. 7. Learned trial Judge, after rejecting the report of the Local Commissioner, in his wisdom dismissed the petition by saying that the petitioners failed to prove that the respondent, dis-obeyed the decree in question. 8. I have heard Mr. Bhupender Gupta, learned senior Counsel instructed by Mr. Neeraj Gupta, Advocate, for the petitioners and Mr. Sanjay Vasudeva, learned Counsel for the respondents. 9. In my view, it was not permissible to the learned Sub Judge to , have dismissed the case on the ground that oral evidence led by the parties is of no consequence and the report of the Local Commissioner is not acceptable. 10. Division Bench of this Court in Gian Chand Khatana and others v. Inderjit Chodha, FAO No. 25 of 2002, decided on May 21, 2002, noticed that 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 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, it was observed by the Division Bench, is 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 in variance to such a report. The report of the Commissioner has a limited purpose to serve i.e. 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 spot. The evidentiary weight of a report will depend on the facts and circumstances of each case and" the evidence led by the parties on record. 11. Sub Rule (3) of Rule 10 of Order 26 stipulates, if the Court is dis-satisfied 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. 11. Sub Rule (3) of Rule 10 of Order 26 stipulates, if the Court is dis-satisfied 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. The court has a discretion to order a fresh commission. Though he is not bound to do so in every case where the report of the Local Commissioner is found to be unsatisfactory. The Court can decide the case on the evidence on record after setting aside the report of the Commissioner. 12. In the present case, the trial Court after holding that the report of the Commissioner was liable to be set aside rejected the petition on the sole ground that oral evidence was of no consequence without discussing the oral evidence. This, in my view, is not a correct position under the law. If the learned trial Court was of the view that the petition cannot be decided without the report of the Local Commissioner, then he should have appointed a fresh Commissioner or remitted the case back to the Commissioner with the direction for demarcation in accordance with the certified copy of Musabi. 13. In the facts and circumstances of the case, the order of the learned trial Judge cannot be sustained. The order is accordingly set aside. The case shall go back to the learned trial Court, who shall appoint another Local Commissioner with suitable directions and thereafter decide the petition in accordance with law in the background of the observations made hereinabove. There will be no order as to costs. 14. The parties shall appear before the trial Court on 17th January, 2003. The record of the case shall be remitted back to the trial Court immediately, so as to reach the Court well before 16th January, 2003.