RSA No.2741 of 2005(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2741 of 2005(O&M) Date of decision: 24.12.2008 Roshan Lal Singla ......Appellant Versus Suresh Kumar ......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Jaideep Verma, Advocate for the appellant. Mr. Vijay Lath, Advocate for the respondent. * * * Rakesh Kumar Garg, J. This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent for possession of the suit land after removal of the construction raised thereon and further restraining the defendant from interfering in the possession of the plaintiff over the suit land, has been decreed. Brief averments contained in the plaint are that the plaintiff is the hissedar co-sharer in the suit property measuring 1 kanal 8 marlas to the extent of 22/28 share, situated within the revenue limits of village Nangal, Tehsil Anandpur Sahib. He purchased the aforesaid land from the previous hissedar/co-sharer in possession Smt. Durga Devi by virtue of registered sale deed dated 6.7.1983 and another sale deed dated 2.11.1995 executed by her for a valuable consideration in favour of the plaintiff and mutation was also sanctioned in his favour. It is further averred that he remained in hissedari possession of the land in suit as hissedar/co-sharer when the defendant in the month of May, 1998 illegally and forcibly dispossessed him from part of the suit land measuring 0K-3M RSA No.2741 of 2005(O&M) 2 being its North-East part by way of raising unauthorized construction in the form of boundary wall and he is still in possession of the remaining land in suit as its hissedar/co-sharer. The defendant has absolutely no right, title or interest whatever in the land in suit. He is claiming himself as hissedar/co-sharer in respect of the land of adjoining khasra No.445 and on that basis he took law into his hands in the first week of May, 1998 and forcibly dispossessed him from the land measuring 3 marlas. He further dispossessed him from the land measuring 0K-1M-6 Sarsahi out of the suit property illegally during the pendency of the suit in the month of March, 2000 and thus, he is a trespasser and unauthorized occupant of the land measuring 0k-4M-6 Sarsahi forming North-East part of the suit property over which he has got no right, title or interest. He has been requested many a time to vacate the unlawful possession but he declined, hence the suit. The defendant appeared and controverted the claim of the plaintiff by raising preliminary objections that the suit is not maintainable in the present form and suit is also time barred. He is also estopped by his act and conduct to file the present suit as he has been silent spectator to the long possession of the suit land by the defendant. On merits, it is denied that the plaintiff was owner of the suit property as no sale deed was executed in his favour. On the other hand, the defendant is in physical possession as owner of the land measuring 45 marlas since its purchase i.e. 25.10.1982. He has already constructed boundary wall around the said plot immediately after purchasing the same. It is denied that he dis- possessed the plaintiff in his absence from part of the suit land because at the time of raising the boundary wall and installation of the iron gate on the Eastern side father of the plaintiff was very much present because he demarcated the suit land. It is further pleaded that the defendant is owner RSA No.2741 of 2005(O&M) 3 in possession of his land since 1982 and that the plaintiff never raised any protest against the said construction therefore, the question of demolition or removal of the same does not arise. He has been in physical possession of the land measuring 45 marla and his possession is open, hostile, un-interrupted and to the knowledge of the public at large and if he is found in possession of any part of the suit land, he has become owner of the same by way of adverse possession. From the pleadings of the parties, the following issues were framed:- ”1.Whether the defendant has encroached upon the suit land to the extent of 4 ½ marlas on the northern and eastern part of the suit property? OPP 2. If issue No.1 is proved whether the plaintiff is entitled after demolition and removal of unauthorized construction for possession and consequential relief of permanent injunction?OPP 3. Whether the suit of the plaintiff is not maintainable in the eyes of law?OPD 4. Whether the plaintiff is estopped by his act and conduct?OPD 5. Whether the defendant has become owner in possession by way of adverse possession?OPD 5(a) Whether the report of the LC is liable to be set aside in view of the objections of the defendant?OPD 6. Relief.” After hearing arguments of the counsel for the parties and considering the evidence on record, the trial Court held that the defendant had encroached upon the suit land of the plaintiff-respondent to the extent RSA No.2741 of 2005(O&M) 4 of 4 ½ marlas on the northern and eastern part of the suit property and the plaintiff is entitled to the same after demolition. Issues No.3 and 4 were decided against the defendant. Findings on issue No.5 were recorded against the appellant-defendant for want of evidence and issue No.5A was decided against the defendant and report of the Local Commissioner was accepted as objections raised by the appellant were not substantiated by any evidence. Consequently, the suit of the plaintiff-respondent was decreed. Feeling dissatisfied with the impugned judgment and decrees of the trial Court, the defendant filed an appeal before the Lower Appellate Court which was also dismissed vide judgment and decree dated 17.5.2005 passed by the District Judge, Ropar. Still not satisfied, the defendant has filed the instant appeal challenging the aforesaid judgment and decrees of the Courts below . Learned counsel for the appellant has vehemently argued that the Courts below have erred in law while decreeing the suit of the plaintiff- respondent on the basis of report of Local Commissioner about the alleged encroachment as the same is not admissible in evidence without examining the Local Commissioner under Order 26 Rule 10 CPC. It has been further argued by the learned counsel for the appellant that the report of the Local Commissioner is not the subject matter of the suit and, therefore, framing of any issue to that effect was wholly unwarranted and thus, the judgment and decrees of the Courts below are vitiated and are liable to be set aside. In support of his case, learned counsel has relied upon a judgment of this Court reported as Balbir Dewan v. Naveen Chander AIR 1989 Punjab and Haryana 257. On the other hand, learned counsel for the respondent has vehemently argued that the Courts below on appreciation of evidence have RSA No.2741 of 2005(O&M) 5 recorded a finding of fact that the appellant has encroached upon the suit land and no substantial question of law arises in this case. Learned counsel has further argued that the report of the Local Commissioner appointed by the Court has to be read in evidence without its being formally proved and any party which takes an exception against the contents of such a report is under an obligation to produce the Commissioner in Court and to establish that the objections raised by it are well founded. Unless and until such a course is adopted due weight has to be given to the report submitted by the Local Commissioner and has prayed that the appeal is without any merit and the same deserves to be dismissed. I have heard learned counsel for the parties and perused the impugned judgment and decrees of the Courts below. The contention raised by the learned counsel for the appellant is misconceived. Undisputedly, the Local Commissioner was appointed by the Court who after demarcation of the land from the pucca points to the satisfaction of the parties, submitted his report Ex.P1 which was duly signed by them, wherein it was inter alia observed that the statements of parties were also recorded and measurements were effected to the satisfaction of the parties and he found encroachment of area of 4 marlas 6 Sarsahi shown in the plan as ABCD. No doubt, the objections were filed by the appellant but he had not produced any evidence in support of the said objections except his own statement, nor he summoned the Local Commissioner to question the findings of encroachment in the report. Order 26 Rule 10 CPC provides that report of 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 or as RSA No.2741 of 2005(O&M) 6 to his report or as to the manner in which he has made the investigation. It has been clearly held by this Court in “Jawahar Lal v. Mangu Ram through LRs, 1988 Civil Court Cases, 54 that “there is no provision for filing objections to Local Commissioners report-Court or any of the parties to the suit with the permission of the Court may examine the Commissioner touching any of the matters mentioned in his report or as to his report or as to the manner in which he has made the investigation and inspection made in the presence of the parties is ordinarily accepted by the Court unless there is some inherent defect.” Likewise, it was further held in case reported as Raja Ram v. Ram Sarup 1979 PLJ 12 that “report of Local Commissioner appointed by the Court has to be read in evidence without its being formally proved. Party which takes exception against contents of such report-must produce Local Commissioner in court and establish that objections raised are well-founded. Unless and until such a course is adopted-due weight must be given to report of Local Commissioner.” Further in another case reported as “Vadde Rajeswaramma v. Dr. V.L. Narasimha Charyulu 1998(2) Recent Civil Reports, 617 it has been clearly held “that it is open for the Court to examine the Commissioner on matters referred to him in his report or as to the manner in which he had made the investigation. It is open for the parties also to examine the Commissioner on matters referred to him in his report or on the manner in which he had conducted the investigation. This is the only interpretation which can be placed upon sub-rule (2) of Rule 10 CPC. There is no other interpretation possible of this sub-rule. It is a different matter if neither the Court nor any of the parties takes any objection to the report. In such a situation the report becomes final and becomes part of the record and also can be taken as piece of evidence. But, once a party objects to it and specifically wants that the Commissioner be examined, the Court has no RSA No.2741 of 2005(O&M) 7 option but to examine the Commissioner. Unless that is done, the Commissioner's report cannot either form part of the record nor it can become a piece of evidence which could be relied upon at the stage of disposal of the suit.” Moreover, in the instant case the appellant-defendant remained contended with filing of the objections alone and failed to examine the Local Commissioner and question his findings as to his report and as such due weight has to be given to the report of Local Commissioner in the light of well settled principle of law as aforesaid. The judgment cited by the learned counsel for the appellant is not applicable to the facts of the case. In that case, the plaintiff had filed a suit for partition and evidence on his behalf was concluded and when the case was fixed for defendant's evidence he filed an application for the appointment of the Local Commissioner for demarcation of the suit property. Consequently, Tehsildar, Karnal was appointed as Local Commissioner who submitted his report. Objections were raised against the said report. Thereafter, the trial Court appointed another Local Commissioner who submitted his report. Against this report also objections were filed by the defendant. The main objection was that the Local Commissioner has not demarcated the land as per instructions of the Financial Commissioner and the High Court Rules and Orders. Accordingly, the trial Court framed an additional issue on the point of the report of the Local Commissioner and the parties were asked to lead evidence. Against this order, the defendant filed a petition in this Court and it was held that there is no provision for filing objections to the report of the Local Commissioner and the report of the Local Commissioner is to be ordinarily accepted. In case, if any, such objections are filed, the Court may consider the same and if for any reason is dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be RSA No.2741 of 2005(O&M) 8 made as may be deemed fit but neither of the parties is entitled to claim any issue with respect to the report. It was further observed that the only provision 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. It was further held that the objections, if any, 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. It is pertinent to mention here that in the above noted case, the Objector had raised the objection that his objections should have been decided first before directing the parties to lead evidence on this issue whereas in the present case no such objections were raised by the appellant and in fact it has been asserted that the report of the Local Commissioner is liable to be set aside in view of the objections placed by the defendant and the issue was claimed by the appellant. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. December 24, 2008 (RAKESH KUMAR GARG) ps JUDGE