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2014 DIGILAW 447 (CHH)

Saroj Bai v. Ramdas Lahre

2014-12-05

P.SAM KOSHY

body2014
ORDER P. Sam Koshy, J. 1. By way of the instant appeal, the appellant has challenged the judgment and decree dated 28.4.12 passed by the Additional District Judge, Mungeli in Civil Appeal No. 7-A/2011 whereby the 1st appellate court has confirmed and affirmed the judgment and decree dated 6.11.2009 by the Civil Judge, Class-1, Mungeli in Civil Suit No. 53-A/2006. 2. The facts leading to the filing of the instant Second Appeal are that plaintiffs had instituted a suit claiming declaration of title, injunction in the mandatory form seeking removal of the encroachment which is alleged to have been created by the defendant in the suit property bearing Khasra No. 462/1 measuring 8.17 acres at village Dharampura of which, it is alleged that the defendants, had encroached upon some portion of the said land and made certain construction in the said suit land as an encroachment and therefore, had sought for the removal of same. It is a case where during the course of the proceedings before the trial court, vide its order dated 10.3.2008, in the light of the provisions of Order 26 Rule 9 CPC, the trial court ordered for a special inspection of the disputed portion of land and in the course, vide order dated 10.3.08, the court below had specifically directed that Tehsildar, Mungeli is appointed as Commissioner and it was further directed that the Tehsildar himself shall go and conduct the inspection of the disputed property and submit a report to the court on the basis of which, the further proceedings would take place. However, subsequently, it was learnt that the Tehsildar in spite of personally executing the order of the court as a Commissioner, as per the order dated 10.3.08, in turn, had appointed a Committee consisting of 3 Revenue Inspectors namely Nasir Khan, Mulchand Dubey and Ram Bhajan Singh and directed the said Committee to get the measurement done and to submit the report to him and the 3 Inspectors, as per the order of the Tehsildar, conducted the measurement and submitted a report to the Tehsildar, who in turn, made a Commissioner's report and submitted the same before the Tribunal. On the basis of the said report of the Commissioner, the trial court proceeded further and decided the suit in favour of the plaintiffs holding that the defendants have in fact made certain encroachments on the suit property and accordingly, allowing the suit, judgment and decree was passed on 6.11.2009. 3. This judgment dated 6.11.2009 was put to challenge by way of an appeal i.e. which was registered as Civil Appeal No. 7-A/2011 before the Additional District Judge, Mungeli. 4. The 1st appellate court also, after taking into consideration, the findings arrived at by the trial court, reached to the conclusion that there was no error of law committed by the trial court in the course of deciding the suit on the basis of the Commissioner's report which was submitted before the trial court and confirmed and affirmed the judgment and decree of the trial court rejecting the appeal vide its judgment dated 28.4.2012. 5. It is this judgment dated 28.4.2012 which is subjected to challenge by way of the instant Second Appeal. 6. The Second Appeal was admitted for hearing on 31.1.2013 and this Court had framed the substantial question of law which is as under:- "Whether both courts below have committed illegality by accepting report of the Commissioner in evidence not appointed by the Court or not permitted by the Court?" 7. Counsel for the appellant apprising the Court on the substantial question of law, took the Court firstly through the order dated 10.3.2008 drawing the attention of the Court towards the direction of the court in appointing the Tehsildar as a Commissioner and that the Tehsildar shall inspect the spot and carry out the measurement and submit a report of the disputed suit property so as to ascertain the factual position of the case in a proper manner. He has referred the evidence of witness i.e. Mulchand Dubey, Revenue Inspector, was one of the persons who had conducted the measurement and who was examined before the court below at the instance of the court so as to prove the Commissioner's report which was submitted by the Tehsildar. He has referred the evidence of witness i.e. Mulchand Dubey, Revenue Inspector, was one of the persons who had conducted the measurement and who was examined before the court below at the instance of the court so as to prove the Commissioner's report which was submitted by the Tehsildar. Taking the court through the deposition of the said Mulchand Dubey, counsel for the appellant has stated that from the deposition of Mulchand Dubey, it is evidently clear that the Tahsildar has not complied with the order of the trial court dated 10.3.2008 in its correct perspective wherein he was specifically appointed as a Commissioner under Order 26 Rule 9 CPC and that it was further specifically directed that the Tehsildar himself shall visit the spot and conduct inspection and thereafter submit a spot inspection report after conducting the same. The relevant portion of the order passed by the trial court appointing the Tehsildar as Commissioner is reproduced for ready reference as under:- ^^rglhynkj eqaxsyh dks izdj.k esa dfe’uj fu;qDr fd;k tkrk gSA mudks mDr laca/k esa Kkiu tkjh gks fd og oknxzLr Hkwfe ds laca/k esa o LFky fujh{k.k dj ekSds dh fLFkfr ds laca/k esa viuk izfrosnu izLrqr djsA^^ 8. From the plain reading of the order passed by the trial court dated 10.3.08, it reflects that the there was a specific order appointing the Commissioner for inspection and that he was further directed to personally conduct spot inspection and submit a report of the same. But the deposition of Mulchand Dubey clearly shows that the Tehsildar in stead of conducting the spot inspection himself, had constituted a Committee consisting of 3 Revenue Inspectors namely Nasir Khan, Mulchand Dubey and Ram Bhajan Singh for submitting a report after visiting the spot and further the evidence of Mulchand Dubey also reflects that as per the order of the Tahsildar, 3 Revenue Inspectors had inspected the spot and conducted the spot inspection and thereafter they have submitted a report to the Tehsildar who in turn, prepared another report and submitted the same to the court towards compliance of the court order dated 10.3.08. 9. 9. This act on the part of the Tehsildar in not personally complying the order of the Court dated 10.3.2008 by conducting a spot inspection personally and instead, getting the spot inspection done through an agency, according to the counsel for the appellant is not sustainable particularly when the Tehsildar was appointed invoking the powers of the court under Order 26 Rule 9 CPC. 10. Counsel for the appellant, in support of his contentions, insisted upon the fact that the report of the Commissioner as submitted before the trial court cannot be accepted to be proper and relies upon the judgment of the Division Bench of this High Court on the original side wherein the Division Bench of this Court while deciding the Civil Suit No. 1-A/08 in the matter of South Eastern Coalfields Limited vs. State of Chhattisgarh and another. According to counsel for the appellant, the Division Bench of this Court, has in very specific terms, under similar set of facts, held in its judgment dated 5.3.10 that once when the Court exercising the power under Order 26 Rule 9 CPC has appointed a Commissioner, then the said authority appointed as a Commissioner is bound to act as the representative of the Court and conduct personally the spot inspection of the disputed land so as to give the correct factual position before the court by way of the Commissioner's report and on the basis of the judgment of the Division Bench of this Court, counsel for the appellant prays that the two orders passed by the two courts below in relying upon Commissioner's report cannot be accepted and the findings arrived at, deserves to be set aside and the matter has to be remitted back for fresh adjudication. 11. 11. Counsel for respondent No. 1/plaintiff submits that it is a case where the report perhaps shows that the Tehsildar also, was present while the inspection was being conducted and the Committee of the 3 Revenue Inspectors was constituted only for assisting the Tehsildar for the purpose of conducting spot inspection and in the statement of the Commissioner's report, he further makes a statement that even otherwise, it is not a case where the counsel for the appellant is doubting the integrity of the Revenue Inspectors who have in fact prepared the report, rather described the same to be only a material irregularity where instead of the Tehsildar himself conducting the spot inspection, he has got it done by the team of Revenue Inspectors working under him which would rather show the fairness on the part of the Tehsildar in getting the work done as per the directions of the Court. He further submits that it is also a case where no prejudice has been caused only on account of the fact that instead of the Tehsildar personally conducting the spot inspection, has got it done by the Committee of Officers posted under him and for this reason also, the said Commissioner's report cannot be ignored. Thus, the two courts below have rightly accepted the same in taking note of the said Commissioner's report, it has firstly decided the suit in favour of the plaintiffs and the 1st appellate court also has affirmed the judgment and therefore, prays for rejection of the Second Appeal by answering the substantial question of law in negative. 12. Considering the rival contentions put forth by the counsel appearing on either side and on perusal of the record, particularly the deposition of Mulchand Dubey, the witness who has been examined to prove the Commissioner's report on the basis of the which the two courts below have decided the suit, it is explicit from the statement of Mulchand Dubey that the spot inspection was not carried upon by the Tehsildar himself but it was the 3 Revenue Inspectors' Committee which was constituted by the Tehsildar who had conducted the spot inspection. 13. 13. From the deposition of Mulchand Dubey, it is also explicit that the Committee constituted by the Tehsildar, had submitted a report to the Tehsildar and thereafter the Tehsildar in turn, had prepared the report and submitted the same before the court as the Commissioner's report showing it to be a case where the spot inspection has been done by the Tehsildar himself. 14. Thus, from the deposition of the said Mulchand Dubey itself, it is evidently clear that the Tehsildar has not discharged his duties as assigned to him vide order dated 10.3.2008 and that the report in the name of Tehsildar submitted before the court was not in fact the report of the Tehsildar but was a report of a Committee constituted by the Tehsildar and as such the report of the 3 Revenue Inspectors who were not appointed by the court as Commissioners cannot be accepted as a Commissioner's report. Thus, the reliance on the said Commissioner's report by the two courts below in deciding the suit appears to be erroneous. 15. If we take into consideration the judgment of the Division Bench of this Court in Civil Suit No. 1A-/08 dated 5.3.10, the Division Bench has, dealing with similar set of facts, held as under:- "While dealing with same question in the matter of Onkar Prasad & Anr. v. Manju Devi & Ors, this Court has held that Tehsildar appointed as Commissioner for local investigation cannot entrust local investigation to Revenue Inspector without permission of the Court." xxxx xxxxxx xxxx "the Court has issued Commission for local inspection, but the Commissioner so appointed has not investigated/inspected/demarcated the land and one Commissioner out the two has constituted a team for execution of Commission and delegated the work of Commission without permission of the Court. The Commission report submitted by the officers to whom the work has been delegated by one of the Commissioners without permission is without jurisdiction and is of no use. Therefore, the Commission report, in the present case, ifs of no help for proving issue No. 1." 16. The Commission report submitted by the officers to whom the work has been delegated by one of the Commissioners without permission is without jurisdiction and is of no use. Therefore, the Commission report, in the present case, ifs of no help for proving issue No. 1." 16. In the light of the judgment of the Division Bench of this Court and also taking into consideration the deposition of Mulchand Dubey, this Court is of the view that the finding of the two courts below, relying upon the Commissioner's report is not proper, legal and justified and in fact the Commissioner's report so relied upon by the two courts below cannot be said to be a Commissioner's report ad it was in fact the report of the third party agency not appointed by the court which was furnished before the court through the Commissioner and which cannot be in consonance to the order passed by the trial court dated 10.3.2008. 17. For the foregoing reasons, this Court is of the opinion that the finding of the two courts below cannot be sustained and accordingly, the substantial question of law framed by this Court is answered in the affirmative holding that there was a substantial illegality on the part of the two courts below in accepting the Commissioner's report. 18. As a consequence, the Second appeal is allowed and the two orders passed by the court below are set aside and the matter is remanded back to the trial court for fresh adjudication upon the issue raised by the plaintiff. It is further directed that the court below shall direct the Tehsildar concerned to personally conduct the spot inspection and to submit a report so as to reach to a proper conclusion. 19. Needless to mention that the Tehsildar upon being appointed as the Commissioner, can take the assistance of the necessary persons required for conducting the spot inspection. It is further directed that both the parties shall cooperate with the proceedings of the trial court and also cooperate during the course of the spot inspection to be conducted by the Commissioner. 20. With the consent of the counsel for the parties, the parties are directed to appear before the trial court on 19.1.2015. Registry is directed to ensure that the record is sent back to the concerned court at the earliest. 21. 20. With the consent of the counsel for the parties, the parties are directed to appear before the trial court on 19.1.2015. Registry is directed to ensure that the record is sent back to the concerned court at the earliest. 21. In view of above, the instant Second Appeal is allowed.