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2016 DIGILAW 928 (HP)

Ram Dayal v. Daya Ram

2016-05-25

SANJAY KAROL

body2016
JUDGMENT : Sanjay Karol, J. This regular second appeal stands filed under the provisions of Section 100 of the Code of Civil Procedure. Concurrent findings of fact rendered by the Courts below are challenged by the contesting defendant Sh. Ram Dayal (appellant herein). 2. Plaintiff Daya Ram (respondent herein) filed a suit for permanent prohibitory injunction, alleging defendant Ram Dayal to have illegally raised construction over khasra No. 43 desiring the Court to pass a decree for demolition thereof. The said defendant admitted to have raised construction not over the suit land but his own khasra No. 47. 3. Based on the respective pleadings of the parties, trial Court framed the following issues:- 1. Whether the plaintiff is entitled to relief of permanent prohibitory injunction? OPP 2. Whether the plaintiff is entitled to relief of mandatory injunction? OPP 3. Whether the plaintiff is estopped to file this suit by his act and conduct? OPD 4. Whether the suit is bad for non-joinder and mis-joinder of parties? OPD 5. Relief. 4. Though initially vide judgment and decree dated 29.9.2001, trial Court dismissed the plaintiff’s suit, but however, in the plaintiff’s appeal the matter came to be remanded back to the trial Court for consideration afresh, vide judgment and decree dated 14.11.2003 passed by District Judge, Shimla in Civil Appeal No. 94-S/13 of 2001, titled as Daya Ram vs. Ram Dayal & another. 5. Subsequently, in terms of judgment and decree dated 16.5.2007, passed in Civil Suit No. 84/1 of 96/95, titled as Daya Ram vs. Ram Dayal & another, the trial Court decreed the plaintiff’s suit, holding the defendant to have illegally raised construction over khara No. 43. Trial Court placed reliance upon the report of the Local Commissioner as also revenue record (Ext PW-1/A). 6. Findings of fact, judgment and decree stands affirmed by the lower appellate Court in terms of its judgment and decree dated 3.7.2008, passed in Civil Appeal No. 4-S/13 of 2008, titled as Ram Dayal vs. Daya Ram & another. Hence, the present appeal. 7. The appeal stands admitted on the following substantial question of law:- 1. Whether the application filed by the plaintiff/appellant for appointment of the local commissioner because of the death of the earlier local commissioner and because of the denial of opportunity to examine/cross-examine the said commissioner could have been dismissed by the trial Court? 2. Hence, the present appeal. 7. The appeal stands admitted on the following substantial question of law:- 1. Whether the application filed by the plaintiff/appellant for appointment of the local commissioner because of the death of the earlier local commissioner and because of the denial of opportunity to examine/cross-examine the said commissioner could have been dismissed by the trial Court? 2. Whether the learned lower appellate court being a final court of fact and law was not duty bound to have discussed in detail the grounds as raised by the appellant before it? 3. Whether the suit of the plaintiff/appellant could have been decreed solely on the basis of the report of the local commissioner? 8. Having heard learned counsel for the parties as also perused the record, I am of the considered view that no ground for interference is made out in the present appeal, more so, when no question of law, much less substantial question of law, arises for consideration. It cannot be said that the courts below, mis-read or misconstrued the evidence (oral or documentary) in decreeing the plaintiff’s suit. 9. Insofar as substantial question of law No. 2 is concerned, there is no doubt that the appellate Court is duty bound to discuss the grounds raised in the appeal but then the points raised by the appellant at the time of arguing the appeal stands considered and dealt with by the lower appellate Court. Appellant never filed a review application, alleging non consideration of the issues raised by him at the time of final hearing. Even in the present appeal, no specific grievance, to such effect is made. Hence, the said question does not arise for consideration at all. 10. Insofar as substantial questions of law No. 1 and 3 are concerned, even they do not arise for consideration in the present appeal. 11. Record reveals that the issues came to be framed by the Court on 4.7.1995. Thereafter on the plaintiff’s application, as the order sheet reveals (order dated 24.2.1997) parties jointly suggested the name of Sh. B.C. Lakhanpal, Naib Tehsildar (Rural) as a Local Commissioner. The Local Commissioner after visiting the spot verified the record; recorded the statements of the parties; and only thereafter submitted his report, which reveals that the defendant raised construction over khasra No. 43 and not 47. B.C. Lakhanpal, Naib Tehsildar (Rural) as a Local Commissioner. The Local Commissioner after visiting the spot verified the record; recorded the statements of the parties; and only thereafter submitted his report, which reveals that the defendant raised construction over khasra No. 43 and not 47. Record further reveals that objections to the report were filed by the defendant but then they were never pressed at any point in time. In fact, trial Court’s order dated 29.11.1999 reveals that no issue, other than the one which stood framed on 4.7.1995 was ever pressed by the parties. Record further reveals that the defendant had filed an application under Order 26 Rule 10 CPC for cross examining the Local Commissioner as a Court witness. Though notice in the application was issued on 7.9.2000, but he chose not to press the same and as such, it came to be dismissed as having been withdrawn vide order dated 29.9.2001. Defendant’s application for appointment of a Local Commissioner also came to be dismissed in terms of the very same order. At no point in time, this order dated 29.9.2001 came to be challenged by the defendant. Hence reliance on the report of the Local Commissioner, without him being examined in Court, cannot be said to be erroneous or contrary to law. 12. In the instant case report of the Local Commissioner was prepared by an expert whose name came to be jointly proposed by the parties. There was no doubt about his integrity. Statements of the parties were recorded by the Local Commissioner on the spot. None disputed correctness or veracity thereof. Defendant chose not to examine the Local Commissioner as a witness. Withdrawal of such application was a clear intent of not only not cross-examining the Local Commissioner but acceptance of his report, as it is, as a piece of evidence. 13. For the purpose of adjudication of the controversy in issue the relevant provisions of Order 26 of the Code of Civil Procedure are reproduced as under: “9. Withdrawal of such application was a clear intent of not only not cross-examining the Local Commissioner but acceptance of his report, as it is, as a piece of evidence. 13. For the purpose of adjudication of the controversy in issue the relevant provisions of Order 26 of the Code of Civil Procedure are reproduced as under: “9. Commissions to make local investigations:- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules. 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 deposition 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 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. (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. 10-A. Commission for scientific investigation :- (1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court. (2) The provisions of rule 10 of this Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9. 10-B. Commission for performance of a ministerial act :- (1) Where any question arising in a suit involves the performance of any ministerial act which cannot, in the opinion of the Court, be conveniently performed before the Court, the Court may, if, for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to perform that ministerial act and report thereon to the Court. (2) The provisions of rule 10 of this Order shall apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9. 10-C. Commission for the sale of movable property :- (1) Where, in any suit, it becomes necessary to sell any movable property which is in the custody of the Court pending the determination of the suit and which cannot be conveniently preserved, the Court may, if, for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to conduct such sale and report thereon to the Court. (2) The provisions of rule 10 of this Order shall apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9. (2) The provisions of rule 10 of this Order shall apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9. (3) Every such sale shall be held, as far as may be, in accordance with the procedure prescribed for the sale of movable property in execution of a decree.” 14. Under Sub-rule (3) of Rule 10, it becomes necessary for the Court to consider whether there are any reasons for being dissatisfied with the proceedings of the Commissioner and to decide whether further enquiry should be made or not. In deciding that question, the Court has to consider the correctness or otherwise of the Commissioner's report on the materials then available to the Court. An order rejecting the objections or confirming the report of the commissioner does not mean that the Court would abdicate its functions and decide the fact in issue, solely on the report of the commissioner and in disregard of or irrespective of any other relevant evidence having bearing on the question. Court is not precluded from considering the report of the Commissioner again in the light of such fresh materials as may be legally brought on record by the parties. Sub-rule (2) makes it quite clear 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; 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. It is obvious that when the Court rejects certain objections to the Commissioner's report, it is not precluded from examining the commissioner at a later stage either 'suo motu or at the instance of any of the parties to the suit; nor does the Court preclude itself from considering the report of the Commissioner in the light of such other evidence as may be given by the parties to the suit. 15. Under Order 26 of the Code, Local Commissioners are appointed for different purposes and the procedure prescribed for that is also differently provided. 15. Under Order 26 of the Code, Local Commissioners are appointed for different purposes and the procedure prescribed for that is also differently provided. If the local Commissioner is appointed under Order 26, Rule 13 of the Code to make partition of immovable property, Rule 14 thereof provides for hearing any objection which the parties may make to his report. Similarly, if the Local Commissioner is appointed to examine or adjust accounts under Rule 11, under Sub-rule (2) of Rule 12, the proceedings and report of the Commissioner shall be evidence in the suit, but where the Court has reason to be dissatisfied with them, it may direct such further inquiry as it shall think fit. As regards the Commissioner to be appointed under Rule 9 of Order 26 of the Code, Rule 10 thereof provides the procedure for that. Sub-rule (2) of Rule 10 further provides that 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. Sub-rule (3) comes into play after Sub-rule (2) of Rule 10 of Order 26. If under that sub-rule a Commissioner is examined in Court either by the parties or by the Court, itself, then on the examination of the Commissioner, the Court may, if for reasons dissatisfied with the procedure, direct such further inquiry to be made as it shall think fit Thus, the objections to the report of the Commissioner as such are not contemplated under Rule 10. In any case, even if the objections are filed to draw the attention of the Court as to why the report of the Commissioner should not be accepted, even then the question of framing any issue in that behalf does not arise. 16. In any case, even if the objections are filed to draw the attention of the Court as to why the report of the Commissioner should not be accepted, even then the question of framing any issue in that behalf does not arise. 16. In Misrilal Ramratan & others, Mansukhlal and others vs. A.S. Shaik Fathimal (Dead) by LRs and others, 1995 Supp (4) Supreme Court Cases 600, it is held by the Hon’ble Supreme Court that:- “It is now settled law [not well settled now – SIC] that the report of the Commissioner is part of the record and that therefore the report cannot be overlooked or rejected on spacious plea of non-examination of the Commissioner as a witness since it is part of the record of the case.” 17. This Court in Lekh Ram & others vs. Gian Del & others, Latest HLJ 2006 (HP) 361 held the order ignoring the report of the Local Commissioner to be contrary to the provisions of Order 26 Rule 10(2) CPC. 18. This Court in Kishori Lal & others vs. Smt. Pingla Devi & others, 1999(1) Shim.L.C. 221 , has held that by virtue of a specific provision engrafted in Rule 10 of Order 26, the report of the Commissioner and the evidence taken by him is evidence in the suit and shall form part of the record. 19. Similar view is taken by the Punjab and Haryana High Court in 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. Any party taking exception against the contents thereof, is under an obligation to produce the Commissioner in Court and to establish his objections to be well founded. 20. For proper elucidation of the matter in dispute, in full satisfaction, the Court, by consent, had appointed a particular person as a Local Commissioner. The said Local Commissioner did reduce his report into writing. Also the evidence taken by him was placed before the Court as part of the report. The report stood signed by him. The Court did not feel the requirement of examining the Commissioner. Also the Court did not deem it necessary to direct further inquiry with regard to the fact in issue/matter in dispute. 21. Also the evidence taken by him was placed before the Court as part of the report. The report stood signed by him. The Court did not feel the requirement of examining the Commissioner. Also the Court did not deem it necessary to direct further inquiry with regard to the fact in issue/matter in dispute. 21. Only in the event of the report of the first Local Commissioner being unsatisfactory and the Court being dissatisfied with the same, the second Local Commissioner can be appointed [Samudrala Seetaramacharyulu & others vs. Samudrala Ranganayakamma & others, AIR 1958 Andhra Pradesh 304]. 22. In the instant case such need was never felt. 23. A Division Bench of the Punjab and Haryana High Court in Balbir Dewan vs. Naveen Chander, AIR 1989 Punjab & Haryana 257, has also taken a similar view. 24. Independently one is satisfied with regard to the findings returned by the Courts below, which are also based on the photographs (Ext. P1 to P14), revenue record (Ext. PW1/A) and the testimonies of the witnesses of the parties. Lower appellate Court has rightly appreciated the testimony of Ram Dayal (DW-1) while holding the objections to the report of the Local Commissioner to be baseless (paragraph-25). 25. Consequently, I do not find any reason or ground sufficient enough to interfere with concurrent findings of fact recorded by the Courts below. It cannot be said that the judgments passed by the Courts below are based on incorrect and incomplete appreciation of facts and material placed on record by the parties or that the same is perverse which has resulted in miscarriage of justice. No question of law, much less substantial question of law arises for consideration in the present appeal. The appeal is accordingly dismissed. Pending applications, if any, also stand disposed of accordingly.