JUDGMENT : Ajay Mohan Goel, J. 1. This appeal has been filed against judgment and decree dated 16.8.2005 passed by the Court of learned District Judge, Una in Civil Appeal No. 09 of 2003, whereby the judgment and decree passed by learned Sub Judge 1st Class (1), Amb was set aside by the learned appellate Court. 2. This appeal was admitted on the following substantial question of law:- “Whether the second report of the Local commissioner, upon which the judgment and decree of the first appellate Court is based, is not correct?” 3. In brief, the facts of the case are that Ram Krishan present respondent, filed a suit for permanent injunction for restraining the defendants from taking forcible possession, interfering in any manner and raising any construction or digging any ‘Khada’ etc. over the suit land, measuring 0-09-03 hectares comprised in khewat No. 299 min, khatauni No. 632, kahasra No. 2473 as entered in Nakal Misal Hakiat Bandobast for the year 1988-89 situated in village Dangoh, Tehsil Amb, District Una, HP. 4. According to the plaintiff, the suit land was owned and possessed by him along with other co-sharers and defendants were not having any right, title or interest whatsoever in the suit land. The ‘abadi’ of plaintiff along with abadi of other co-sharers was existing in the suit land and out of abadies of different co-sharers, some land was vacant behind the abadi of the plaintiff. Defendants being clever and shrewd persons of the locality, in order to harass him illegally, started threatening to interfere and take forcible possession and dig khada for latrine purpose on the vacant portion of the suit land and at the back side of the abadi of the plaintiff. It was further averred in the plaint that residential house of the plaintiff was very old and was a kachi abadi and if defendants succeeded in diging a khada at the back side of the kacha house of the plaintiff over the vacant portion of the suit land then the residential house of the plaintiff would fall down. It was in this background, that the suit was filed against the defendants by the plaintiff. 5. In the written statement, defendants therein (present appellant No.1 and predecessor-in-interest of appellants No.2 & 3), admitted that plaintiff was owner in possession of the suit land. It was in this background, that the suit was filed against the defendants by the plaintiff. 5. In the written statement, defendants therein (present appellant No.1 and predecessor-in-interest of appellants No.2 & 3), admitted that plaintiff was owner in possession of the suit land. However, as per defendants, it was plaintiff, who wanted to grab the land of the defendants which was adjoining to the land of the plaintiff. The defendants stated that they were not raising any construction over the suit land and the digging of the ‘khada’ for latrine purpose was being done in khasra No. 2474 and away from the back side from the abadi of the plaintiff. It was further averred that the defendants had left space in boundaries between the parties. The defendants had further stated that the plaintiff was a shrewd and mischievous person and was in fact trespassing over the area of the answering defendants. As per defendants, they never threatened to dismantle the abadi of the plaintiff and he had filed a false case in order to harass them. Thus the civil suit was dismissed by the learned lower Court. At this stage, it is pertinent to note that when the case was pending in the learned lower Court, one Surjit Singh, retired District Revenue Officer (DRO) was appointed as a local commissioner to visit the spot. He had submitted his report before the learned lower Court, which was exhibited as Ext.PW1/A. The learned lower Court while dismissing the suit also concluded that report of the local commissioner-PW-1, Surjit Singh, would go to show that result of demarcation submitted to the Court lacked credibility. 6. On the pleadings of the parties, the learned lower Court framed the following issues:- “1. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP. 2. Whether the suit is not maintainable? OPD 3. Whether the plaintiff is estopped by his act and conduct to file suit? OPD. 4. Relief.” 7. The learned lower Court answered the findings returned on the said issues as under:- “Issue No. 1…………No. Issue No.2…………Yes. Issue No.3…………Yes. Relief……………….The suit is dismissed per operative part of the judgment.” 8. The judgment of the learned lower Court was challenged by way of civil appeal No. 09 of 2003 by the plaintiff. OPD. 4. Relief.” 7. The learned lower Court answered the findings returned on the said issues as under:- “Issue No. 1…………No. Issue No.2…………Yes. Issue No.3…………Yes. Relief……………….The suit is dismissed per operative part of the judgment.” 8. The judgment of the learned lower Court was challenged by way of civil appeal No. 09 of 2003 by the plaintiff. During the pendency of appeal, vide order dated 24.11.2004, the learned appellate Court again appointed Surjit Singh retired DRO, who had already demarcated the suit land and submitted report Ext. PW1/A, to visit the spot again and demarcate the suit land afresh as per the provisions of Chapter 10.2 of the H.P. Land Record Manual. This order was passed by the learned appellate Court after holding that when the learned lower Court had rejected the report of the local commissioner on the ground that demarcation had been carried out by the local commissioner with the help of ‘Shajara Latha and help of ‘Musavi’ was not taken, then the appropriate course for the learned lower Court was to appoint afresh local commissioner, or send the same report to the local commissioner, so as to clarify whether the boundary line of khasra No. 2482 and 2466 is 63 meters or 68 meters. As per the learned appellate Court, the act of the learned lower Court of not doing so had resulted in miscarriage of justice. Accordingly, it directed the same local commissioner to visit the spot again and submit his report. Order dated 24.11.2004, vide which Surjit Singh Retd. DRO was directed to visit the spot and demarcate the suit land, was not challenged by either of the parties to the suit. 9. When the case was listed on 2.2.2005, it was ordered by the learned appellate Court that the report of the local commissioner had been received and no objection was sought to be filed. Accordingly, the case was ordered to be listed for hearing on 1.3.2005. 10. On 1.3.2005, the report of the local commissioner was marked as Ext. C-1. On the request of the learned counsel for the respondents therein the case was ordered to be listed for arguments on 9.3.2005. 11. On 9.3.2005, as per the order of the learned appellate Court, the arguments were partly heard and an application was filed praying for permission to file objections to the report of the local commissioner. C-1. On the request of the learned counsel for the respondents therein the case was ordered to be listed for arguments on 9.3.2005. 11. On 9.3.2005, as per the order of the learned appellate Court, the arguments were partly heard and an application was filed praying for permission to file objections to the report of the local commissioner. This application was ordered to be listed for reply and consideration on 16.3.2005. 12. On 16.3.2005 the learned appellate Court passed the following order:- “Reply to application under Section 151 C.P.C. as well as on objections filed. Arguments on objections and main appeal heard. Be listed for orders on 4.4.2005.” 13. Thereafter, on 4.4.2005, the following order was passed:- “It is clear from the averments made in the objections application filed by the respondent that he has raised certain arguable points regarding the validity of the report submitted by Shri Surjit Singh, Retd. D.R.O. who was appointed as L.C. As such, court is of the opinion that the examination of said L.C. is necessary to adjudicate the controversy between the parties. Now case be listed for evidence of the Local commissioner on 6.5.2005. The respondent is directed to deposit the necessary charges within 3 days.” 14. Thereafter, on 6.5.2005, the following order was passed:- “Statement of L.C. as O.W.1 recorded and the evidence of the objector closed. No evidence sought to be led by the appellant-non-objector. Put up for consideration on L.C. Report and arguments in main appeal on 7.6.2005.” 15. Thereafter, on 7.6.2005, the following order was passed:- “Ld. P.O. is on leave. To come up for proper order on 20.6.2005.” 16. Thereafter, on 20.6.2005, the following order was passed:- “The case is listed for proper orders today. For consideration on the Local commissioner’s report and arguments on the main appeal to come up on 29.6.2005.” 17. Thereafter, on 29.6.2005, the following order was passed:- “Ld. counsel for the parties are not ready for arguments. Adjournment prayed for arguments. Granted. For arguments to come up on 9.8.2005.” 18. Thereafter, on 9.8.2005, the following order was passed:- “Arguments heard. For orders to come up on 16.8.2005.” 19. Thereafter, on 16.8.2005, the following order was passed:- “Appeal is accepted, vide my separate judgment of today placed on the record. File after completion be consigned to the records.” 20. Granted. For arguments to come up on 9.8.2005.” 18. Thereafter, on 9.8.2005, the following order was passed:- “Arguments heard. For orders to come up on 16.8.2005.” 19. Thereafter, on 16.8.2005, the following order was passed:- “Appeal is accepted, vide my separate judgment of today placed on the record. File after completion be consigned to the records.” 20. Accordingly, vide judgment dated 16.8.2005, the learned appellate Court allowed the appeal by setting aside the judgment passed by the learned lower Court in the following terms:- “Judged in the light of my findings on the foregoing point, the appeal succeeds and is hereby allowed. The impugned judgment and decree are set aside, and the suit is decreed. The defendants are hereby permanently restrained from taking forcible possession of the suit land, interfering therewith, raising construction thereon or digging a pit therein. The defendants shall be saddled with costs throughout. A decree-sheet be drawn and the file after completion consigned to records. The record of the ld. trial court together with a copy of this judgment be sent back.” 21. Mr. Ajay Sharma learned counsel for the appellants has argued that the judgment passed by the learned appellate Court, in fact, is apparently bad in law because the learned appellate Court has ventured to adjudicate the appeal on merit without first deciding the objection which was filed by the present appellants to the report of the local commissioner. In support of his arguments, he has contended that the zimni orders which have been passed by the learned appellate Court from 24.11.2004 onwards, make it apparently clear that Surjit Singh retired DRO was again ordered by the learned appellate Court to visit the spot and carry out the demarcation of the area. The local commissioner accordingly submitted his report before the learned appellate Court. The present appellants filed their objections to the same and as per the order sheets, the learned appellate Court heard arguments on the objections, which were so filed by the appellants. However, without passing any order on the said objections, which were filed by the present appellants against the report of the local commissioner, the learned appellate Court has adjudicated the appeal on merit which has greatly prejudiced the present appellants and resulted in miscarriage of justice. However, without passing any order on the said objections, which were filed by the present appellants against the report of the local commissioner, the learned appellate Court has adjudicated the appeal on merit which has greatly prejudiced the present appellants and resulted in miscarriage of justice. Even otherwise, according to him, it was incumbent upon the learned appellate Court to have had adjudicated upon the objections which were filed against the report of the local commissioner and only thereafter, the learned lower Court could have decided the appeal on merit. 22. Mr. Sharma has also submitted that because the report of the local commissioner was not accepted by the learned appellate Court while disposing of the objections filed by the present appellants, the same could not have been acted upon. According to him, relying on the said report renders both the judgments and the said report bad in law. According to him, the report of the local commissioner was in fact full of discrepancies and even the learned appellate Court had ordered examination of the local commissioner, as it had found substance in the objections filed by the appellants to the report. The learned appellate Court not only manifestly committed illegality by passing judgment on merit in main appeal by relying upon the said report without deciding the objections, it also denied the appellants remedy in law, if order had gone against them on their objections. 23. Mr. Naresh Thakur, learned senior counsel appearing for respondent has submitted that there is no infirmity or illegality with the judgment, which has been passed by the learned appellate Court. 24. According to him, it is evident from the orders passed by the learned appellate Court from time to time that it was hearing both the objections filed to the report of the local commissioner as well as the arguments on the appeal on merit simultaneously. Mr. Thakur has further argued that there was no objection made to the hearing of the appeal on merit along with the objections filed to the local commissioner report by the present appellants. As per him, these issues are being raised now by the appellants only because the learned appellate Court has allowed the appeal. Otherwise also, according to Mr. Thakur, the learned lower Court has taken into consideration all the aspects of the matter and thereafter it has allowed the appeal of the present respondents. As per him, these issues are being raised now by the appellants only because the learned appellate Court has allowed the appeal. Otherwise also, according to Mr. Thakur, the learned lower Court has taken into consideration all the aspects of the matter and thereafter it has allowed the appeal of the present respondents. Therefore, according to him, the substantial question of law framed, in fact, does not subsist in the facts and circumstances of the case and the present appeal is without any merit. As per Mr. Thakur the fact that the learned appellate Court has decided the main appeal on merit by relying upon the report of the local commissioner means that the learned appellate Court has accepted the said report and not found any merit in the objections. According to him, the appellant has right to urge all these points in the present appeal also. 25. Be that as it may, the fact of the matter remains that the learned first appellate Court vide its order dated 24.11.2004 directed Surjit Singh retired DRO, who had already demarcated the suit land to visit the spot and again demarcated the suit land afresh. In compliance to the said orders, the local commissioner, so appointed demarcated the land and submitted his report before the learned appellate Court. The present appellants filed their objections to the report of the local commissioner. Order passed by the learned lower Court on 16.5.2005 reveals that on that day arguments were heard both on the objections filed against the report of the local commissioner as well as on the main appeal and thereafter the case was listed for order on 4.4.2005. However on 4.4.2005, the learned appellate Court did not pass any order but it was observed that in view of the averments made in the objections filed to the report of the local commissioner, the Court was of the opinion that examination of the local commissioner was necessary to adjudicate the controversy between the parties. Accordingly, the case was ordered to be listed for evidence of the local commissioner on 6.5.2005. On the said date, the statement of the local commissioner was recorded and the case was ordered to be listed for consideration on the local commissioner’s report and arguments in the main appeal on 7.6.2005. The Presiding Officer was on leave on 7.6.2005 and the case was accordingly listed on 20.6.2005. On the said date, the statement of the local commissioner was recorded and the case was ordered to be listed for consideration on the local commissioner’s report and arguments in the main appeal on 7.6.2005. The Presiding Officer was on leave on 7.6.2005 and the case was accordingly listed on 20.6.2005. On the said date, the case was ordered to be listed for consideration on the local commissioner’s report and arguments of the main appeal for 29.6.2005. On 29.6.2005 the case was adjourned for 9.8.2005, on which date as per the records of the learned appellate Court arguments were heard. Thus, it is apparent from the orders passed by the learned appellate Court that though it had listed the case on more than one date, inter-alia, for the consideration of objections filed to the report of the local commissioner but no order was passed by the learned appellate Court on the objections filed against the report of the local commissioner either accepting them or rejecting them. This in my considered view has vitiated the judgment passed by the learned appellate Court on merit and resulted in miscarriage of justice. The learned appellate court could not have had passed judgment on merit in the main appeal without first independently adjudicating the objections which were filed by the present appellants against the report of the local commissioner. 26. At this stage, it is relevant to refer to the provision of Order 26 Rule 10 of the Code of Civil Procedure, which reads as under:- “10. Procedure of Commissioner:- (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court. (2) Report and depositions to be evidence in suit - The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the 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 has made the investigation. (3) Commissioner may be examined in person - Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.” 27. Thus, it is apparent from the reading of Sub Rule 2 of Order 26 Rule 10 that report of the local commissioner would be evidence in the proceedings in which the Commissioner is appointed. The Court has the power and the parties have a right to examine the Commissioner personally in Court touching any matter referred to by him in the report or as to the manner in which he had carried out the investigation. It is settled law that it is open to a party to show that the report of the Commissioner is incorrect and the same is not entitled to credence. 28. This Court has held in Mst. Rattani and others Vs. Dharam Chand alias Dharman and others, 2000 (1) S.L.J. 52 that the report of the local commissioner cannot be relied upon and treated as evidence under Order 26 Rule 10 CPC without first deciding the objections made by the defendants to the correctness of such report. Therefore, this position of law cannot be disputed that when objections are filed to the report of the local commissioner, it is necessary to dispose of these objections before relying upon the report of the local commissioner. 29. Admittedly, the objections which were filed to the report of the local commissioner have not been decided by the learned appellate Court and further the said report of the local commissioner has been treated as evidence and relied upon by the learned appellate Court in deciding the appeal in favour of the present respondents. 30. In my view, in law it was incumbent upon the learned appellate Court to first decide the objections on the report of the local commissioner and then proceed further. Any order which the learned appellate Court would have passed on the objections was “amenable to scrutiny” of superior Court as per legal rights available to either party. This remedy admittedly has been denied to both the parties, as no order has been passed on the objections. It is settled principle of law that justice should not only be done but should also seem to have been done. This remedy admittedly has been denied to both the parties, as no order has been passed on the objections. It is settled principle of law that justice should not only be done but should also seem to have been done. However, in the present case the act of the learned appellate Court in deciding the main appeal on merit without first passing any order on the objections filed against the report of the local commissioner violates the said mandate of law, therefore also the judgment and decree passed by the learned appellate Court is bad in law and liable to be set aside. 31. In view of the findings returned above, the present appeal is allowed and the judgment and decree passed by the learned appellate court in Civil Appeal No. 09 of 2003 dated 16.8.2005 are set aside and the case is ordered to be remanded to the learned appellate Court with a direction to adjudicate the same afresh after first disposing of the objections filed by the present appellants against the report of the local commissioner. It is made clear that this Court has not made any observation on the merits of the case and the learned appellate Court shall decide the appeal on merit without being influenced by any observation made by this Court. 32. As the civil suit pertains to the year 1995, this Court hopes and trusts that the learned appellate Court shall decide the appeal, as expeditiously as possible, and preferably before 31.12.2016. The parties through their respective counsel are directed to appear before the learned appellate Court on 30.5.2016. Records of the case be sent forthwith to the learned Appellate Court.