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2005 DIGILAW 359 (HP)

LEKH RAM v. GIAN DEL

2005-09-22

V.M.JAIN

body2005
JUDGEMENT V.M. Jain, J: This Regular Second Appeal has been filed by the defendants against the judgments and decrees of the Courts below, whereby the suit filed by the plaintiffs was decreed by the trial Court and the appeal filed by the defendants was dismissed by the learned Additional District Judge. 2. The facts which are relevant for the decision of the present appeal are that the plaintiffs had filed a suit for permanent injunction, claiming themselves to be the! co-owners in joint possession of the land measuring 18 Biswas, alongwith proforma defendants and that the contesting defendants were the owners of the adjoining land and had not right, title or interest over the suit land. It was further alleged that the contesting defendants had diverted the flow of the water towards the house of the plaintiffs, as a result of which the house was damaged. It was accordingly prayed that the contesting defendants be restrained from throwing water of their land in the land of the plaintiffs and proforma defendants. 3. The suit was contested by the contesting defendants by filling written statement. It was admitted by the defendants that they were owners in possession of the land adjoining the suit land. However, it was denied that they had diverted the flow of the water of their land towards the suit land. On the other, it was pleaded that the water of the land was flowing for the last 50 years and there was no new diversion by the defendants at the spot. It was also denied that any damage had been caused to the house of the plaintiffs. On the other hand, it was pleaded that the plaintiffs had filed the present suit only to harass the contesting defendants and to grab their land. 4. Various issues were framed. After hearing both the sides, the learned trial Court decreed the suit of the plaintiffs and restrained the contesting defendants from throwing the water of their land towards the land of the plaintiffs and proforma defendants. The appeal filed by the contesting defendants was dismissed by the learned Additional District Judge. Aggrieved against the same, the contesting defendants filed the present appeal in the Court. 5. Notice was issued to the plaintiffs-respondents and records were also requisitioned. 6. The appeal filed by the contesting defendants was dismissed by the learned Additional District Judge. Aggrieved against the same, the contesting defendants filed the present appeal in the Court. 5. Notice was issued to the plaintiffs-respondents and records were also requisitioned. 6. After hearing the learned counsel for the parties and perusing the record, in my opinion, the following substantial questions of law arise for determination in this appeal: 1. Whether the trial court could have ignored the report of the Local Commissioner only on the ground that the Local Commissioner had not been examined? 2. Whether the judgment and decree passed by the Additional District Judge are liable to be set aside on the ground that the Additional District Judge had not considered the report of the Local Commissioner while appreciating the evidence? 7. During the pendency of the suit, a Local Commissioner was appointed, who had submitted his report. However, when the learned trial Court decreed the suit of the plaintiffs, the learned trial Court did not consider the report submitted by the Local Commissioner on the ground that the same was not proved on the record, since the Local Commissioner had not been examined. While ignoring the report of the Local Commissioner, the learned trial Court made the following observations: "Although the Local Commissioner has been appointed in this case, but the report of the Local Commissioner has not been proved on record as per the procedure. The Local Commissioner has not been examined. Therefore, the report submitted by the Local Commissioner, cannot be relied upon." 8. After ignoring the report of the Local Commissioner by making the aforesaid observations, the learned trial Court proceeded to decide the suit after considering the other evidence available on the record. After the suit was, decreed by the trial Court, when the defendants fifed the appeal, the learned Additional District Judge, after noticing that the Local Commissioner was appointed in this case and he had submitted his report, failed to consider the said report of the Local Commissioner while dismissing the appeal of the defendants. The only reference made on the Local Commissioner by the learned Additional District Judge is as follows:- "During pendency of the suit Sh. The only reference made on the Local Commissioner by the learned Additional District Judge is as follows:- "During pendency of the suit Sh. Dinesh Kumar Sharma, Advocate was appointed, Local Commissioner who visited the spot on 14.8.1999 and he submitted his report that the defendants have not dug new water channel in their land for flow of rain water nor the flow of water has caused any damage to the land and house of the plaintiffs and the water is flowing to the adjoining Nallaha." 9. In the present case, even though a Local Commissioner was appointed by the Local Commissioner who had visited the spot and had submitted his report to the effect that the defendants had not dug new water channel in their land for the flow of rain water nor the flow of water had caused any damage to the land and house of the plaintiffs and the water was flowing to the adjoining Nallah, yet neither the trail Court considered the said report of the Local Commissioner while decreeing the suit of the plaintiffs nor the learned Additional District Judge considered the said report of the Local Commissioner while dismissing the appeal of the defendants, though it was noticed that the Local Commissioner had given his report. In fact, no reasons were given as to why the learned Additional District Judge had ignored the said report of the Local Commissioner, even though, as referred to above, the trial Court had refused to consider the said report of the Local Commissioner on the ground that the same was not proved on the record as per procedure, inasmuch as the Local Commissioner has not been examined. 10. In my opinion, the view taken by the learned trial Court in ignoring the report of the Local Commissioner is contrary to the provisions of Order 26 Rule 10(2) C.P.C. and is also contrary to the law laid down by the Honble Supreme Court and by this Court. For this reason alone, in my opinion, the judgment and decree passed by the trial Court are liable to be set aside. For this reason alone, in my opinion, the judgment and decree passed by the trial Court are liable to be set aside. Furthermore, in my opinion, the judgment and decree passed by the learned Additional District Judge are also liable to be set aside on the short ground that the learned Additional District Judge had not considered the said report of the Local Commissioner while deciding the appeal and had not given any reasons as to why the aforesaid report of the Local Commissioner was being ignored. 11.In Misrilal Ramratan and others, Mansukhlal and others Vs. A.S. Shaik Fathimal (Dead) by LRs and others, 1995 Supp (4) Supreme Court Cases 600, it was held by the Honble Supreme Court as under: "It is not well settled now that the report of the Commissioner is part of the record and that therefore the report cannot be over looked or rejected on spacious plea of non-examination of the Commissioner as a witness since it is part of the record of the case." 12. In Kishori Lal and others Vs. Smt. Pingla Devi and others, 1999(1) Shim. L.C. 221, it was held by this Court as under: "It is by now well settled both by virtue of a specific provision engrafted in Rule 10 of Order 26 as also by pronouncement of courts that the report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record." 13. Similar view was taken by the Punjab and Haryana High Court in the case Raja Ram Vs. Ram Sarup, 1979, P.L.J. 12, in which it was held that the report of the Local Commissioner appointed by Court has to be read in evidence without its being formally proved and any party which takes exception against contents of such a report is under an obligation to produce the Commissioner in Court and to establish that the objections raised by it are well founded. 14. In view of the law laid down in the above mentioned authorities, in my opinion, the learned trail Court had erred in law in ignoring the report of the Local Commissioner on the ground that the report had not been proved as per the procedure or that the Local Commissioner had not been examined. 14. In view of the law laid down in the above mentioned authorities, in my opinion, the learned trail Court had erred in law in ignoring the report of the Local Commissioner on the ground that the report had not been proved as per the procedure or that the Local Commissioner had not been examined. Furthermore, while deciding the appeal and considering the evidence led by the parties, in my opinion, it was the duty of the learned Additional District Judge to have considered the report of the Local Commissioner, who had submitted his report after visiting the spot under the orders of the Court. Merely by noticing that the report of the Local Commissioner is available on the record, in my opinion, the learned Additional District Judge could not decided the appeal without considering the effect of the report of the Local Commissioner, which was available on the record. 15. ln view of the detailed discussion above, both the substantial questions of law referred to above are decided in favour of the defendants-appellants. 16. The next question that comes up for consideration is as to what order should be passed by this Court after heaving found that both the Courts below had erred in law in not considering the report of the Local Commissioner. Since both the Courts below had tailed to consider the report of the Local Commissioner and had decided the suit and the appeal on the basis of the other evidence available on the record, in my opinion, it is a fit case where the judgments and decrees passed by the Courts below should be set aside and the trial Court be directed to decide the suits afresh in accordance with law, after considering the report of the Local Commissioner without its formal proof. 17. For the reasons recorded above, the present appeal is allowed, the judgments and decrees of the Courts below are set aside and the suit is remanded to the trial Court for decision afresh in accordance with law, keeping in view the observations made by me above. 18. However, nothing stated above shall be taken as an expression of opinion on the merits of the case or in respect of the effect of the report of the Local Commissioner on the merits of the case. 19. 18. However, nothing stated above shall be taken as an expression of opinion on the merits of the case or in respect of the effect of the report of the Local Commissioner on the merits of the case. 19. Parties through their counsel are directed to appear before the trial Court on 24th October, 2005, for further proceedings in accordance with law. The Registry shall send the trial Court record to the trial Court forthwith alongwith a copy of this order, for information and strict compliance. CMP No. 334 of 2005: In view of the orders passed in the main appeal, this application has become infructuous. CMP No. 333 of 2005: In view of the orders passed in the main appeal, the stay order dated 27 4.2005 shall stand vacated and the application stands disposed of.