JUDGMENT : P.S. Rana, J. Order of limited remand under Section 107 of Code of Civil Procedure 1908 and under Order 41 Rule 23-A of Code of Civil Procedure 1908:- Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure by the appellant against the judgment and decree dated 21.7.2001 passed by learned District Judge Sirmaur at Nahan in Civil Appeal No. 151-CA/13 of 2000 titled Yusuf Khan vs. Ajmer Singh and others. 2. Brief facts of the case as pleaded are that Ajmer Singh plaintiff filed a suit for injunction pleaded therein that plaintiff and proforma defendants are owners in possession of land comprised in Khata No. 14 min Khatauni No. 29 min, 30 min, 34 min Khasra Nos. 375/1 total measuring 335-6 situated at mauja Moginand Tehsil Nahan District Sirmaur H.P. as per jamabandi for the year 1988-89. It is pleaded that contesting defendant has no right title or interest in the suit land. It is pleaded that contesting defendant without any right title or interest in the suit land caused interference with the help of his family members and caused damage to the crop sown by plaintiff on the suit land. It is pleaded that house of defendant is situated in adjoining Khasra No. 379 and contesting defendant intended to encroach upon the suit land more particularly Khasra No. 375/1/1. It is pleaded that contesting defendant had collected construction material at the spot. It is further pleaded that plaintiff asked the contesting defendant not to interfere over the suit land but defendant did not accept the request of plaintiff. Prayer for decree of permanent prohibitory injunction sought in favour of the plaintiff and against the contesting defendant and in alternative relief of possession sought in favour of plaintiff and against the contesting defendant on the basis of title of plaintiff. 3. Per contra written statement filed on behalf of contesting defendant pleaded therein that plaintiff is not entitled to the relief of permanent prohibitory injunction and suit is not maintainable. It is pleaded that suit is not within limitation and is not maintainable in the present form. It is pleaded that contesting defendant was inducted as non-occupancy tenant over the suit land in the year 1947-1948 over the land comprised in Khasra No. 375/1/1 and 379/63/1. It is pleaded that suit is not within limitation and is not maintainable in the present form. It is pleaded that contesting defendant was inducted as non-occupancy tenant over the suit land in the year 1947-1948 over the land comprised in Khasra No. 375/1/1 and 379/63/1. It is pleaded that entry in revenue record is contrary to factual position and it is further pleaded that contesting defendant is in settled possession of suit land. It is further pleaded that plaintiff has no cause of action and prayer for dismissal of suit sought. 4. Plaintiff also filed replication and re-asserted the allegations made in plaint. As per the pleadings of parties learned trial Court framed following issues on dated 5.8.1997:- 1. Whether plaintiff is entitled for the decree of permanent injunction as alleged? OPP 2. Whether plaintiff is entitled for decree of possession as alleged? OPP 3. Whether suit of the plaintiff is based on mala fide? If so its effect? OPD 4. Whether the suit is not maintainable in present form as alleged? OPD 5. Whether suit is not within time? OPD 6. Whether the defendants are non-occupancy tenant over a portion of the suit land measuring 10-15 bighas inclusive of suit land? If so its effect? OPD 7. Whether the revenue entries in the revenue record showing the plaintiff as owner in possession are contrary to the actual facts and are fraudulent and incorrect? If so, its effect?OPD 8. Relief. 5. Findings of learned trial Court on issue No. 1 was in favour of the plaintiff and learned trial Court decided issues Nos. 2,3,4 as redundant and learned trial Court decided issues Nos. 5, 6, 7 against contesting defendants. Learned trial Court decreed the suit filed by plaintiff and passed decree of permanent prohibitory injunction in favour of plaintiff and against contesting defendant No.1 and permanently restrained defendant No.1 from causing any sort of interference over the suit land comprised in Khasra No. 375/1/1 measuring 5/14 bighas as shown in tatima Ext.PB. 6. Feeling aggrieved against the judgment and decree passed by learned trial Court contesting defendant Yusuf Khan filed Civil Appeal No. 151-CA/13 of 2000 titled Yusuf Khan vs. Ajmer Singh and others before learned District Judge Sirmaur at Nahan. Learned first Appellate Court on dated 21.7.2001 accepted the appeal and set aside the impugned judgment and decree passed by learned trial Court on dated 14.3.2000. 7. Learned first Appellate Court on dated 21.7.2001 accepted the appeal and set aside the impugned judgment and decree passed by learned trial Court on dated 14.3.2000. 7. Thereafter feeling aggrieved against the judgment and decree passed by learned first Appellate Court plaintiff Ajmer Singh filed present Regular Second Appeal No. 408 of 2001 titled Ajmer Singh and others vs. Yusuf Khan (died) through LRs namely Bashiri and others. Hon’ble High Court admitted the appeal on dated 4.9.2001 on the following substantial questions of law:- 1. Whether in view of revenue entries showing defendant-respondent Yusuf Khan in possession of land Khasra No. 62 could in lieu thereof he be held a tenant of the suit land which is shown as owned and possessed by the appellant-plaintiff? 2. Whether the lower appellate Court has misconstrued and misinterpreted Local Commissioner’s report and has wrongly accepted it to pass the impugned judgment and decree whereas the appellant-plaintiff who has filed objections against the said report was not allowed to cross-examine the Local Commissioner? 8. Court heard learned Advocate appearing on behalf of parties and also perused the entire record carefully. Findings on Point No. 2 of Substantial questions of law 9. Submission of learned Advocate appearing on behalf of the appellant that learned First Appellate Court had committed procedural illegality by way of non-examination of Local Commissioner upon objections filed by objector upon Local Commissioner’s report is accepted for the reasons hereinafter mentioned. It is proved on record that learned trial Court vide order dated 24.11.1998 appointed Shri Prithi Singh Advocate a retired Tehsildar as Local Commissioner in present case to visit the spot and demarcate the land in dispute and submit the report. It is proved on record that on dated 30.3.1999 the report of Local Commissioner was received and learned trial Court directed the parties to file objections on report of Local Commissioner if any. It is proved on record that thereafter objections on report of Local Commissioner were filed on dated 1.4.1999 by plaintiff Ajmer Singh. There is recital in order sheet of learned trial Court dated 1.4.1999 that learned Advocate for the contesting defendant did not admit the objections and thereafter learned trial Court ordered that objections would be disposed of along with main case. There is recital in order sheet of learned trial Court dated 1.4.1999 that learned Advocate for the contesting defendant did not admit the objections and thereafter learned trial Court ordered that objections would be disposed of along with main case. It is also proved on record that thereafter on dated 14.3.2000 learned trial Court decided the civil suit and decreed the suit filed by the plaintiff. Learned trial Court did not affirm or dismiss the objections filed by objector over Local Commissioner’s report. It is proved on record that thereafter learned first Appellate Court in Civil Appeal No. 151-CA/13 of 2000 titled Yusuf Khan vs. Ajmer Singh in para 14 of judgment rejected the objections filed by objector without giving the opportunity to objector to prove the objections mentioned in objection application upon Local Commissioner’s report and without examination of Local Commissioner. As per Order 26 Rule 10 Sub-clause (2) Court or with permission of the Court any of the parties to the suit may examine the Local 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 had made the investigation. In objections petition objector has specifically mentioned that Local Commissioner did not demarcate the suit land in accordance with instructions of Financial Commissioner Himachal Pradesh for conducting the demarcation. In objection petition the objector has specifically prayed for examination of Local Commissioner and there is special recital in objection petition that in order to judge the veracity of report submitted by Local Commissioner examination of Local Commissioner is essential to arrive at the just conclusion. No opportunity of examination of Local Commissioner was given to objector by learned trial Court or learned first Appellate Court. Court is of the opinion that Local Commissioner’s report could not be discussed in judgment or in evidence unless same is not affirmed by the Court. Court is of the opinion that prior affirmation of Local Commissioner report is essential by Court for reading Local Commissioner report as evidence in civil suit. It is held that unless report of Local Commissioner is not affirmed by Court same could not be discussed in judgment. Court is of the opinion that learned first Appellate Court had committed procedural illegality in present case. It is held that unless report of Local Commissioner is not affirmed by Court same could not be discussed in judgment. Court is of the opinion that learned first Appellate Court had committed procedural illegality in present case. Court is of the opinion that it is not expedient in the ends of justice to decide the RSA on merits unless procedural illegality is not rectified. It is well settled law that facts can be proved in civil suit by way of oral evidence or documentary evidence. In present case it is proved on record that learned first Appellate Court did not give any opportunity to the objector to prove the facts mentioned in objection petition by way of examination of Local Commissioner prior to rejection of Local Commissioner’s report in para No. 14 of judgment. Court is of the opinion that allegations mentioned in objection petition could be proved only by way of examination of Local Commissioner in Court by objector. Court is of the opinion that limited re-trial is necessary in present case in the ends of justice in order to properly and effectively adjudicate the controversy inter se the parties. Hence point No. 2 of substantial question of law framed by High Court is answered in affirmative. RSA No. 408 of 2001 is not decided on merits. Hence point No. 1 of substantial question of law is not decided. 10. In view of above stated facts RSA No. 408 of 2001 titled Ajmer Singh vs. Yusuf Khan (died) through LRs namely Bashiri and others is accepted. Judgment and decree passed by learned first Appellate Court in Civil Appeal No. 151-CA/13 of 2000 titled Yusuf Khan vs. Ajmer Singh are set aside in the ends of justice and case is remanded back to learned District Judge Sirmaur at Nahan (H.P.) under Section 107 of Code of Civil Procedure 1908 and under Order 41 Rule 23-A of the Code of Civil Procedure 1908 for limited purpose only. Learned District Judge will decide the objections dated 1.4.1999 filed by objector upon Local Commissioner’s report appointed under Order 26 Rule 9 of Code of Civil Procedure 1908 after examination of Local Commissioner in Court in accordance with law and thereafter learned District Judge will pass fresh judgment and decree in present case in accordance with law. Evidence already recorded will form part and parcel of evidence. Evidence already recorded will form part and parcel of evidence. Parties are left to bear their own costs. Memo of costs be drawn accordingly. Record of learned trial Court and learned first Appellate Court along with certified copy of order of limited remand be sent back forthwith. Since civil appeal is pending since 2000 learned District Judge Sirmaur at Nahan (H.P.) will dispose of the civil appeal expeditiously within one month after the receipt of file. Parties are directed to appear before learned District Judge Sirmaur at Nahan (H.P.) on 31.3.2015. Observations of High Court will not effect merits of case in any manner. Appeal stands disposed of. All pending miscellaneous application(s) if any also stands disposed of.