Research › Search › Judgment

Punjab High Court · body

2004 DIGILAW 426 (PNJ)

Phool Singh (Dead) Through Lrs. v. Atma Ram

2004-04-07

M.M.KUMAR

body2004
Judgment M.M.Kumar, J. 1. This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code) challenging concurrent findings of fact recorded by both the Courts below holding that the claim made by the plaintiff-appellants in the suit for recovery of possession of 7 marlas of land comprised in Khasra No. 199 was misplaced because according to the demarcation report prepared by the Local Commissioner namely Naib Tehsildar on 2.4.1981 Ex.C1 it has been proved that defendant-respondents did not encroach upon the afore-mentioned land. It was further held that the suit land does not constitute part of Khasra No. 199. It is appropriate to mention that the trial Court has also held on the basis of the report dated 15.5.1977 Ex.P1 that defendant-respondents did not encroach upon the land comprised in Khasra No. 199 or in other words, the suit land did not form part of the afore-mentioned Khasra number. However, on appeal, the Learned Additional District Judge appointed Naib Tehsildar as Local Commissioner who submitted his report Ex.C1 dated 2.4.1981 pointed out that the suit land did not constitute part of Khasra No. 199 and the defendant-respondents had not encroached on it. 2. However, on 14.5.1982, the Learned Additional District Judge set aside the findings recorded by the Trial Court and ordered remand of the case for de novo trial by the trial Court. It is pertinent to mention that by that time report dated 2.4.1981 Ex.C1 submitted by the Naib Tehsildar had already come on record. In pursuance to the remand order passed by the Ld. Addl. District Judge, the trial Court appointed the Local Commissioner who had submitted the report on 11.7.1982. In the meanwhile, defendant-respondents filed SAO No. 38 of 1982 before this Court challenging the order of remand dated 14.5.1982 passed by the Addl. District Judge on the ground that no remand could have been ordered by directing de novo trial. The aforementioned contention of the defendant-respondents was upheld by this Court by passing the following order: "After hearing the learned counsel for the parties, I find that the impugned order of the Addl. District Judge dated May 14, 1982 cannot be sustained. District Judge on the ground that no remand could have been ordered by directing de novo trial. The aforementioned contention of the defendant-respondents was upheld by this Court by passing the following order: "After hearing the learned counsel for the parties, I find that the impugned order of the Addl. District Judge dated May 14, 1982 cannot be sustained. The reason given by the Learned Additional District Judge for remanding the case is that if the matter is decided by him in the light of the report of the Local Commissioner, the parties will be deprived of a right of appeal. The reason is quite fallacious when the learned Addl. District Judge was himself seized the appeal. In a case like the present, the lower appellate Court ought not to have delegated its functions to the trial Court and should have proceeded to obtain the report of the Local Commissioner and decided the appeal in the light of the said report. The impugned order of the Addl. District Judge dated May 14, 1982 is consequently set aside. The present Additional District Judge is directed to proceed in the matter in the light of the observations made above and dispose of the appeal in accordance with law." 3. In pursuance to the order of this Court when the matter came up for consideration before the Learned Additional District Judge, the findings recorded by the trail Court were maintained and reliance was placed on report Ex.C1 dated 2.4.1981 which has been obtained by the Learned Additional District Judge. It is also appropriate to mention that even the earlier report made by Jai Singh on which reliance was placed by the trial Court was accepted as correct. It is also appropriate to mention that even the earlier report made by Jai Singh on which reliance was placed by the trial Court was accepted as correct. The views of the Learned Additional District Judge are discernible in the following paras: "In such cases where there is agricultural land and it can be measured and then known about its boundaries that whether any part of it is encroached upon or not, the best evidence is of the Local Commission who measured and demarcated such area with the help of the revenue record and feeling that necessity for the effective and final adjudication of the matter, Shri R.D. Aneja, the Learned Additional District Judge, Ambala vide his order dated 31.1.1981 appointed Naib Tehsildar, Jagadhri as Local Commission and to submit the report after measuring the site in dispute and he submitted the report Ex.C1 and also prepared map Ex.C2 and was examined as CW1 and from that, it was found that the comer of the house of Ram Kishan and corner of house of Des Raj only were existing in part of the land of Khasra No. 199 and the trees which were claimed to be of Atma Ram were towards the north-eastern corner of the said Khasra number and which clinched the matter that Atma Ram or the other defendants had not encroached upon any part of Khasra No. 199. So, far as the report Ex.P1 and map Ex.P2 prepared by the patwari at the time of demarcation of khasra No. 199 before the institution of the suit were concerned, that being an ex parte act could not bind the defendants. Besides that, the perusal of that report which is Ex.P1 on the file would show that the report Ex.P1 was not containing any details that Atma Ram and others had encroached upon any part of Khasra No. 199. However, there is note given at the foot of the said report that unlawful possession made by Atma Ram and others, Norata Ram, Des Raj were shown in the map attached with the report. That map is Ex.P2 and therein it was recorded that Atma Ram and others had encroached upon part of Khasra No. 199 and the encroachment was recorded to have been made on area 23 in the West-East, seven in North and six in the South. That map is Ex.P2 and therein it was recorded that Atma Ram and others had encroached upon part of Khasra No. 199 and the encroachment was recorded to have been made on area 23 in the West-East, seven in North and six in the South. It is also indicated in the map that Norata Ram and Des Raj had also occupied on a part of Khasra No. 199 and the encroachment party was triangular in form i.e. nine one side, four other side and seven Southern Side. The above encroachments are shown the Eastern portion of Khasra No. 199. The measurements having not been made in the presence of the other part Atma Ram and others, it cannot be read against them. Moreover, the report is silent about detecting the encroachment that how and from what point these encroachments were measured. The fixed points from which the measurements were made had also not been given in the report Ex.P1 except from one side i.e. khasra No. 195 in which there was reported to be a garden. It cannot be said that these were correctly made. It is also not indicated that to which side Khasra No. 195 was situated from Khasra No. 199. If Khasra No. 195 was situated towards North and South of Khasra No. 199 then also the measurements of Khasra No. 199 towards east and west could not be correctly made unless that khasra number was located from some fixed points in the East or in the West. Therefore, the report Ex.P1 was not elaborate, definite and clear and the plaintiff could not take any benefit from it. On the other hand, the report made by Jai Singh after making measurements at the spot in the presence of the parties is quite detailed and correct and that found no encroachment over Khasra No. 199 by the defendants, therefore, the learned Sub Judge was correct in giving findings that the disputed site did not form part of Khasra No. 199 though his findings were based on some other reasoning. However, the Learned Sub Judge had fallen in error when he had given findings on issue No. 2 in favour of the defendants when he held that they had become its owner by adverse possession. However, the Learned Sub Judge had fallen in error when he had given findings on issue No. 2 in favour of the defendants when he held that they had become its owner by adverse possession. When the plaintiffs or anybody else was not found to be owner of the disputed site, then there could be no question of adverse possession over that site by the defendants and, therefore, the findings on issue No. 2 are reversed." 4. Shri Akshay Bhan, learned counsel for the appellant has argued that the directions issued by this Court were that the District Judge could have obtained the report of the Local Commissioner and decided the appeal in the light of the report. According to the learned counsel, the report submitted by the Local Commissioner on 11.7.1982 was already on record and the order of the High Court has to be construed to mean that the Additional District Judge was under a legal obligation to consider the report of the Local Commissioner dated 11.7.1982 as it was the direction by this Court. Learned counsel further argued that the Ld. Addl. District Judge while dismissing the appeal of the plaintiff-appellants has committed a grave error by referring to the report Ex.C1 dated 2.4.1981 and completely ignored the report dated 11.7.1982 which has been obtained by the trial Court after remand. The learned counsel has made a reference to the observations of the Additional District Judge in para 19, 20 and 21 and argued that discarding the report on 11.7.1982 in favour of the plaintiff-appellants is absolutely unsustainable in law and in-fact is against the letter and spirit of the order passed by this Court on dated 7.10.1982. 5. Shri K.S. Sidhu, learned counsel for the defendant-respondents has argued that the approach adopted by the Additional District Judge is absolutely consistent with law because it would be illegal to rely upon any proceedings in pursuance of the remand order passed by the Additional District Judge on 14.5.1982 because that order itself has been set aside by this Court. According to the learned counsel, the observation made by this Court in its order dated 7.10.1982 cannot be construed to mean that the Additional District Judge was debarred from taking into consideration the report of the Local Commissioner which he had already obtained. According to the learned counsel, the observation made by this Court in its order dated 7.10.1982 cannot be construed to mean that the Additional District Judge was debarred from taking into consideration the report of the Local Commissioner which he had already obtained. The learned counsel has emphasized on the expression used by this Court when it says in a case like the present, the lower appellate Court ought not to have delegated its function to the trial Court and should have proceeded to obtain the report of the Local Commissioner and decided the appeal in the light of the said report. Therefore, the Additional District Judge by taking into consideration the report Ex.C1 dated 2.4.1981 has acted in accordance with the directions issued by this Court. 6. After hearing the learned counsel for the parties, I am of the considered view that both the Courts below have concurrently found as a fact that defendant-respondent have not encroached upon the land belonging to the plaintiff-appellants nor the suit land forming part of Khasra No. 199 belongs to the plaintiffs-appellants. The afore-mentioned findings are based on the report Ex.C1 dated 2.4.1981 and Ex.C2 (site plan); and Exs.P1 and P2 another report which was obtained by the Civil Judge. The Naib Tehsildar, Jagadhari had appeared as a witness as CW1 who has further explained the factual position obtaining at the spot. It has also been found that the question of adverse possession would not arise as the defendant-respondents have not encroached upon the suit land. These are questions of fact and both the Courts below have concurrently recorded the finding in favour of the defendant-respondents. It is well settled that under Section 100 of the Code no interference on the question of facts would be warranted unless it is found that the findings are without any evidence or suffers from any other legal infirmity. Therefore, no interference is warranted. 7. The argument of the learned counsel for the plaintiff-appellants that the report Ex. C1 dated 2.4.1981 could not have been relied upon and the report dated 11.7.1982 obtained by the Civil Judge should have been considered cannot be accepted because the report obtained by the Civil Judge on 11.7.1982 is in pursuance to an order dated 14.5.1982 which has been set aside by this Court on 7.10.1982. C1 dated 2.4.1981 could not have been relied upon and the report dated 11.7.1982 obtained by the Civil Judge should have been considered cannot be accepted because the report obtained by the Civil Judge on 11.7.1982 is in pursuance to an order dated 14.5.1982 which has been set aside by this Court on 7.10.1982. If the aforementioned report is taken into consideration then it would amount to giving effect to the order dated 14.5.1982 passed by the Ld. Addl. District Judge remanding the case to the Civil Judge. Such a submission for interpreting the order of this Court dated 7.10.1982 would bring unwarranted results and the same is not possible to be accepted. In fact the consideration of the report Ex.C1 and Ex.C2 (site plan) dated 2.4.1981 obtained by the Addl. District Judge is more appropriate as this Court has directed in its order dated 7.10.1982 that the lower appellate Court should not have delegated its functions to the trial Court and should preceded to obtain the report of the Local Commissioner. The case was advised to be decided in the light of such a report. Therefore, by virtue of the order passed by this Court on 7.10.1982, the Addl. District Judge was well within his powers to rely upon the report already obtained on 2.4.1981 Ex.C1. Therefore, the argument raised on behalf of the plaintiff-appellants does not deserve to be accepted. Even otherwise, the view taken by this Court in its order dated 7.10.1982 is supported by a judgment of this Court in the case of The Punjab and Sind Bank Ltd. and Ors. v. Punjab Wakf Board, Ambala, 1981 All India Land Laws Reporter 26 wherein it has been laid down that once the findings of the trial Court have not been reversed on the basis of evidence on record on certain issues and it has been felt by the lower appellate Court that appointment of a Local Commissioner was necessary in order to do justice between the parties then the proper course to be followed by the lower appellate Court is either to appoint a Local Commissioner itself or the trial Court could be directed to send a report after the appointment of a Local Commissioner. For that purpose, alone the Local Commissioner is required to be appointed and the findings could not be reversed. For that purpose, alone the Local Commissioner is required to be appointed and the findings could not be reversed. Viewed in that light, the course adopted by the Learned Additional District Judge by taking into consideration the report of the local Commissioner Ex.C1 is consistent with the orders passed by this Court on 7.10.1982. No other argument has been raised. For the reasons afore-mentioned this appeal fails and the same is dismissed.