IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Regular Second Appeal No. 230 of 2001. Decided on: 7.5.2008. _______________________________________________________ Kuldeep Chand and others. … Appellants/Defendants. Versus Rajinder Kumar and others. … Respondents. _____________________________________________________________ Coram: Hon’bl Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting? No. For the appellants : Mr. Ajay Sharma, Advocate. For Respondents 1 & 2 : None. For Respondent No. 3 : Mr. Naresh Thakur, Advocate. __________________________________________________________________ Rajiv Sharma, Judge. A challenge has been laid by way of this Regular Second Appeal to the judgment and decree dated 31.1.2001 passed by learned District Judge, Una in Civil Appeal No. 68 of 1995. The brief facts necessary for adjudication of the second appeal are that vide judgment and decree dated 7.10.1987 a preliminary decree for partition was passed in favour of respondents/plaintiffs (hereinafter referred to as the plaintiffs for convenience sake). In sequel to preliminary decree, the plaintiffs applied for final decree and vide order dated 19.1.1988, Sadar Kanungo, Una was appointed as Local Commissioner to effect the partition of the suit property. The Local Commissioner visited the spot and effected partition of the suit property as per the terms and conditions of the judgment and submitted his report to the trial Court. __________________________________________________________________ Whether reporters of the local papers may be allowed to see the judgment? No. 2 The appellants/defendants (hereinafter referred to as the defendants for convenience sake) filed objections against the report of the Local Commissioner alleging therein that the Local Commissioner did not demarcate the property as per the reference made by the Court. The Objector had alleged before the trial Court that the Local Commissioner has made no provision for passage for common Well. The second objection was that the Local Commissioner has not left any passage for the defendants’ Abadi. Learned trial Court by a detailed order dismissed the objections on 17.2.1995. The report of the Local Commissioner dated 21.2.1988 was confirmed. The defendants preferred an appeal against the order dated 17.2.1995. The learned District Judge dismissed the appeal on 31.1.2001. This second appeal has been preferred against the judgment dated 31.1.2001. The second appeal was admitted on the following substantial question of law: 1. Whether the impugned judgment and decree are vitiated because of the view contrary to the statements of the parties dated 21.2.1988 made before the Local Commissioner? Mr. Ajay Sharma learned counsel for the appellants had strenuously argued that the judgment passed by the learned District Judge on 31.1.2001 is not sustainable in the eyes of law. More particularly, according to him, the Local Commissioner has failed to take into consideration the statements made before him by OW-1 Kuldeep Sharma. Mr. Naresh Thakur learned counsel for respondent No.3 had supported the judgment dated 31.1.2001. I have heard the learned counsel for the parties and have perused the record carefully. What emerges from the facts as enumerated hereinabove is that pursuant to the judgment and decree dated 7.10.1987 a preliminary 3 decree for partition was passed. The plaintiffs had filed an application for final decree. The trial Court appointed on 19.1.1988 Sadar Kanungo, Una as Local Commissioner to effect the partition. The partition was effected by the Sadar Kanungo, Una after visiting the spot and statements of the parties were also recorded. The defendants had not examined Local Commissioner. In absence of the non-examination of the Local Commissioner by the defendants, the report submitted by him is liable to be accepted. If the defendants had examined the Local Commissioner, the plaintiffs could also get an opportunity to cross-examine him. The trial Court had come to right conclusion that in absence of the examination of the Local Commissioner, the report was to be accepted. Learned District Judge has also rightly confirmed the findings of the trial Court in judgment dated 31.1.2001. Mr. Ajay Sharma submitted that there is no passage for going to the common Well and no ingress has been provided to the defendants to visit their fields. Mr. Naresh Thakur had submitted that it has been noticed by the trial Court that Desh Raj had specifically deposed that the defendants have a passage for their Abadis through their fields. In view of categorical statement of Shri Desh Raj, it can specifically be presumed that there is a passage available for the defendants to go to their Abadis. Similarly, Mr. Naresh Thakur submitted fairly that the defendants will be given free passage to the common Well. Consequently, it is held that there is no substantial question of law involved in this second appeal and the findings recorded by the trial Court and affirmed by the District Judge are based on correct appreciation of facts. Therefore, Regular Second Appeal is dismissed being devoid of any merit. No costs. (Rajiv Sharma) Judge. May 7, 2008. (cr) 4