IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO (Ord.) 513 of 2000. Date of decision May 21, 2008. Puneet and others ….Appellants. Versus Meenakshi Rattna and others ….Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. For the appellants: Mr. Bhupinder Gupta, Sr. Advocate, with Mr. Neeraj Gupta, Advocate. For the respondent(s) Mr. K.D.Sood, Advocate. Dev Darshan Sud, J. (Oral). This appeal has been preferred by the plaintiff against the judgment of the learned District Judge, Kangra at Dharamsala remanding the case for decision afresh by the learned trial Court. The appellant herein is the plaintiff who instituted a suit in the trial Court for possession of part of the suit land after demolition etc. of the constructed portion as prayed for therein. The 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - learned trial Court decreed the suit and in appeal, the learned District Judge, after considering the rival contentions of the parties, held that the local commissioner appointed by the learned trial Court had not carried out demarcation in accordance with law and his report cannot be made the basis of the decree in the suit. The operative part of the judgment reads: “16. Thus from the above discussion, it is clear that the local commissioner had not carried out the measurements in accordance with law and his report cannot be made the basis of decree in suit for possession. A perusal of the record shows that no opportunity was also given to the plaintiff to file the reply to the objections, to the report of the local commissioner though no prejudice can be said to have caused to the plaintiff since the defendants examined the local commissioner as their witness, though an opportunity ought to have been given to the plaintiff to file the reply. From above discussion, it is clear that report of the local commissioner is liable to be set aside and consequently the - 3 - application filed by appellant before this Court under Order 26 Rule 9 CPC for appointment of local commissioner, stands allowed. Consequently the findings of the trial Court are liable to be set aside, being not sustainable in the eyes of law. Both points are decided in favour of the appellant and as against the respondents.” In Gian Chand Khatana and others v. Inderjit Chohdha, AIR 2003 Himachal Pradesh 49, this Court held that the appellate Court has jurisdiction to appoint a local commissioner on its own or to ask the trial Court to send a fresh report of demarcation, but there can be no wholesale remand only on the ground that the report of local commissioner is found unsatisfactory. Similarly, in Bali Ram v. Mela Ram and another, AIR 2003 Himachal Pradesh 87, this Court has held that the Court can issue a local commission suo motu if the facts and circumstances of the case so permit. In the circumstances, the judgment of the appellate Court cannot be sustained and the remand as ordered is against law and is set aside. A - 4 - direction is issued to the learned appellate Court to proceed with the case in accordance with the provisions of law. In case the learned appellate Court finds that the matter requires a fresh local commission report, then it shall either appoint a local commissioner on its own or direct such report to be obtained from the learned trial Court. Such report, if called for, from the trial Court will be placed before the learned District Judge on record of the case and both parties will be given an opportunity to establish the legality of such a report. Needless to say, that even when a local commissioner is appointed by the appellate Court, parties will be given ample opportunity to establish their respective cases. This appeal is accordingly allowed. The judgment of the appellate Court is quashed and set aside with a direction that local commissioner shall be appointed by the appellate Court itself, or report called for from the trial Court. The case will remain pending with the District Judge. There shall be no order as to costs. Let the record be sent back forthwith to the learned appellate Court which shall thereafter - 5 - proceed to issue notice to the parties before proceeding further in the matter. May 21, 2008 (PC). (Dev Darshan Sud), J.