R.S.A.No. 4399 of 2005 1 In the High Court of Punjab and Haryana at Chandigarh RSA No.4399 of 2005 Date of decision: 25.3.2011 Mam Chand ......Appellant Versus Jai Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Arvind Singh, Advocate, for the appellant. Mr. Pritam Saini,Advocate for respondents. **** SABINA, J. Plaintiff had filed a suit for possession of the suit property measuring 6 marlas bearing khasra No.202 situated in village Dhaurala. The case of the plaintiff, in brief, was that he was owner of the property in dispute and had purchased the same from Kishni and Nanki vide sale deed dated 20.3.1990. Although the defendants had no right, title or interest in the suit property but they had forcibly dis-possessed the plaintiff from the suit property on 10.5.1990. Defendants No.1 and 2 in their written statement denied the contentions in the plaint. It was averred that defendant No.2 had purchased the bara out of khasra No.201 from Saroop Chand for a consideration of ` 3,000/-. The bara purchased by defendant No.2 measured 290 square yards and was bounded as under:- North:- Open place of Phagu Ram and Zhandu Ram-55' R.S.A.No. 4399 of 2005 2 South: Rasta and open space- 55' East: Pucca Road- 40' West: Rasta- 55'. An agreement dated 25.10.1989 was executed by Saroop Chand in favour of defendant No.2 after receiving the entire sale consideration. Thereafter, sale deed was to be executed in favour of defendant No.2 or in favour of any other person whom defendant No.2 desired. Defendant No.2 sold the bara to Mam Chand defendant No.1 for a consideration of ` 4,000/- vide agreement dated 30.3.1990. Defendant No.1 had constructed his house after getting demarcation made from Sarwan Singh Kanungo on 4.11.1989. Ratna Ram again got demarcated khasra No.202 from Niranjan Dass, retired Sadar Kanungo on 9.4.1990 and it was found that no encroachment had been made by the defendants on khasra No.202. Answering defendants were, thus, not in possession of khasra No.202. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is owner of the property in dispute and is entitled for possession of the same upon the allegations contained in the plaint? OPP. 2. Whether the plaintiff is entitled for the relief of demolition of the room, alleged to have been constructed at the site in dispute? OPP 3. Whether the plaint is liable to be rejected as averred in plaint 1 of the preliminary objection of the written statement ? OPD R.S.A.No. 4399 of 2005 3 4. Whether the plaintiff has got no locus standi to file and maintain the present present suit ? OPD 5. Whether the plaintiff is estopped by his own act and conduct from filing this suit ? OPD 6. Whether the suit is not maintainable in the present form ? OPD 7. Whether the suit has been filed just to harass the defendant and the defendant is entitled to special costs under Section 35-A CPC ? If so, to what amount? OPD 8. Relief.” The following additional issues were framed on 7.10.1993:- 1. Whether the report of LC is liable to be set aside, as alleged ? OPA 2. Whether the defendant committed the breach of order dated 12.6.1990 as alleged, if so its effect ? OPR 3. Relief. The Civil Judge (Jr.Divn.) vide judgment and decree dated 12.4.1999 decreed the suit of the plaintiff for possession of area measuring 2 marlas 2 sarsai being part of khasra No.202 in terms of demarcation report Ex.P-1. Aggrieved by the said judgment and decree, defendant No.1 preferred an appeal and the same was dismissed by the Additional District Judge vide judgment and decree dated 14.9.2005. Hence, the present appeal by defendant No.1. Learned counsel for the appellant has submitted that no reliance could be placed on the report of the Local Commissioner Ex.P-1. A perusal of the demarcation reports proved on record by R.S.A.No. 4399 of 2005 4 the defendants Ex.D-1 and Ex.D-3 revealed that the defendants had not made any encroachment on khasra No.202. In support of his arguments, learned counsel has placed reliance on Balbir Dewan Cold Storage and General Mills vs. Naveen Chander 1989(1) PLR 677, wherein, it was held as under:- “Thus, from the provisions of Order 26 Rule 10, it is quite evident that there is no provision for inviting any objection to the report of the Local Commissioner appointed under rule 9 thereof. In case, any such objections are filed by either of the parties to draw the attention of the Cour6t as to the inherent defect therein, the Court may consider the same and if for any reason dissatisfied with the proceedings of the Commissioner, may direct such further inquiry to be made as it shall think fit but neither of the parties is entitled to claim any issue with respect to the report. The only provisions under sub rule 2 of rule 10 of Order 26 of the Code is to examine the Commissioners personally in open Court either by the Court itself or by any of the parties with the permission of the Court. The objection, if filed by the parties, shall be considered after the cross-examination, if any, of the Local Commissioner by the Court under rule 10 of Order 26 of the Code and that too along with the other evidence at the time of final hearing.” Learned counsel for the respondents, on the other hand, has submitted that the demarcation reports Ex.D-1 and Ex.D-3 had R.S.A.No. 4399 of 2005 5 been rightly discarded by the Courts below as the same related to the period prior to encroachment by the defendants. The Local Commissioner appointed by the Court had submitted the report Ex.P- 1 after conducting the demarcation in accordance with rules. After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. Order 26 Rules 9 and 10 of the Code of Civil Procedure read as under:- 9.Commission 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 meson 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 Commission.- (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. R.S.A.No. 4399 of 2005 6 (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 may be examined in person. 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.” Thus, report submitted by the Local Commissioner in pursuance of the order of the Court shall form of evidence. The Court itself or any of the parties to the suit with permission of the Court may examine the Commissioner in the open Court. In the present case, the Local Commissioner was appointed by the Court vide order dated 4.12.1991 with a direction to demarcate the disputed khasra No.202 after giving notice to both the parties. In pursuance of the said order, the Local Commissioner visited the spot and demarcated khasra No.202. The report of the Local Commissioner is Ex.P-1. A perusal of the same reveals that notices were issued to the parties on 10.2.1992 to be present at the R.S.A.No. 4399 of 2005 7 spot on 15.2.1992. The said letter duly bears the signatures of Mam Chand and others. Thereafter, another intimation was sent on 18.2.1992 for demarcation to be conducted on 29.2.1992 as the same could not be done on 15.2.1992. A perusal of the demarcation report further reveals that Mam Chand was present at the time of demarcation. The Local Commissioner found that 2 marlas 2 sarsai of land had been encroached by Mam Chand out of khasra No.202. Although Mam Chand- appellant had filed objections qua the report of the Local Commissioner and reply to the said application was filed by the plaintiff but the appellant did not make a request for examination of the Local Commissioner in the Court. In these circumstances, the Courts below rightly held that the report submitted by the Local Commissioner could not be discarded. The judgment relied upon by learned counsel for the appellant in this regard fails to advance the case of the appellant. The case of the plaintiff was that he had been dis- possessed from the suit property on 10.5.1990. The demarcation reports Ex.D-1 dated 9.4.1990 and Ex.D-3 dated 6.11.1989 have rightly not been relied upon by the Courts below as the same related to the period prior to the alleged encroachment. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE March 25, 2011 anita