IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 605 of 2000 Reserved on: 27.5.2010 Decided on : 22.7.2010 Saraswati Devi and another ….. Appellants. Vs. Shyam Lal …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellants : Mr. Sanjeev Kuthiala, Advocate. For the Respondent : Mr. R.K. Gautam, Sr. Advocate with Mr. Mehar Chand, counsel for the respondent. Kuldip Singh, Judge. The appellants were defendants and have suffered a decree to put the respondent in possession of the suit land, after removing the structures raised by them on the suit land. The counter claim filed by the appellants was also dismissed. 2. The facts, in brief, are that the respondent had filed a suit for permanent prohibitory injunction against the appellants on the averments that he is owner-in-possession of evacuee Taur No. 15, measuring 1791 Sq. feet, village Majholi with boundaries specified in the plaint. It is the case of the respondent that he had purchased the Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… aforesaid evacuee property in auction vide sale certificate dated 10.9.1993 registered before the Sub Registrar, Nalagarh on 8.10.1993. The appellants had no right, title or interest over the suit property but they threatened to interfere thereon. The appellants dispossessed the respondent during the pendency of the suit by raising wall on 25.11.1993, hence suit for permanent prohibitory injunction, mandatory injunction and in the alternative for possession. 3. The appellants contested the suit by filing written statement. They denied the ownership and possession of the respondent on the suit land. They projected the case that the disputed plot No. 15 was owned and possessed by Chanan Singh and the respondent has no concern with this plot. The appellant No.1 is owner-in-possession of plot No.20 which is adjacent to plot No.15. The respondent under the garb of the suit wants to grab area of plot No.20. The sale certificate was issued to the respondent in contravention of statutory provisions. The plot No.15 is covered under Gurudwara and the respondent is aware of this fact. He wants to occupy area of plot No.20, which is adjacent to plot No.15. The appellants raised counter claim and prayed injunction against the respondent. The respondent filed replication and reasserted his case pleaded by him in the plaint. 4. On the pleadings of the parties following issues were framed: 1. Whether the plaintiff is owner of the suit land as prayed? O PP 2. Whether the plaintiff is dispossessed from the suit land during the pendency of the suit? OPP …3… 3. Whether the plaintiff is entitled for the relief of permanent injunction as prayed? OPP 3A Whether the plaintiff is entitled for the relief of mandatory injunction? OPP 3B Whether this is not maintainable? OPD 3C Whether the plaintiff has no locus standi to file the present suit? 3D Whether the plaintiff is no cause of action? 4. Whether the plaintiff is trying to interfere in the suit land of the counter claim, as alleged? OPD 5. Whether this court has jurisdiction? OPP 6. Relief. The issues No.1, 2 3(A), 5 were answered in affirmative and issues No 3(B),(C), (D) and 4 were answered in negative. Under Issue No.6 suit was decreed and the counter claim was dismissed by the learned Sub Judge Ist Class, Nalagarh on 8.2.1999 in civil suit No. 90/1 of 1995/1993. The matter was carried in appeal, Civil Appeal No. 9-NL/13 of 1999 and the learned Additional District Judge, Solan on 30.8.2000 dismissed the appeal, hence second appeal, which has been admitted on following substantial questions of law: 1. Whether the impugned judgment and decree is the result of complete misreading, misinterpretation as well as mis-appreciation of report of Local Commissioner Ext.CW-1/A? 2. Whether the learned courts below are right in placing reliance upon the demarcation report Ext. CW-/A to which the objections were filed by the defendants/appellants which have not been considered by the courts below? 3. Whether the learned courts below are right in not taking into consideration the fact that the report …4… Ext. CW-1/A is contrary to the provisions of High Court Rules and orders as well as instructions issued by the Financial Commissioner in this regard. 5. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted on behalf of the appellants that the two courts below have erred in not appreciating that the appellants had filed objections against the Local Commissioner’s report Ext.CW-1/A, which were not considered by the courts below. The report Ext.CW-1/A has been misread, misinterpreted. The report Ext.CW-1/A is not in conformity with the relevant legal provisions. The learned counsel for the appellants has prayed for acceptance of the appeal and dismissal of the suit. The learned counsel appearing on behalf of the respondent has submitted that the two courts below have recorded concurrent findings of facts in favour of the respondent. The report Ext.CW-1/A has been considered by both the courts below, the suit of the respondent has been rightly decreed. The learned counsel for the respondent has supported the impugned judgment, decree. 6. The aforesaid substantial questions of law No. 1 to 3 are interconnected. Therefore all of them are taken up together for determination. The learned counsel for the appellants has submitted that the two courts below have erred in relying report Ext.CW-1/A without deciding the objections of the respondent. He has relied Mst. Rattani and others v. Dharam Chand alias Dharman and others, 1999(3) SLC 473 and Om Parkash v. Ved Parkash and others, 2000(2) SLC 234. In Mst. Rattani, it has been held that the report of …5… the Local Commissioner cannot be relied upon and treated as evidence under Order 26, Rule 10(2) CPC without first deciding the objections made thereto by a party. In Om Parkash, it has been held that sub rule(2) of Rule 14 of Order 26 casts a duty on the court to hear the objections, if any, which the parties may make to the report and then confirm, vary or set aside the report. 7. On 6.4.1998, the learned Sub Judge had appointed Local Commissioner to demarcate the suit land. The Tehsildar, Nalagarh was appointed as Local Commissioner to demarcate plots. He was directed to fix the boundaries after demarcation and to report whether any wall has been raised over any portion of plot No.15. The Local Commissioner visited the site on 17.4.1998 alongwith relevant revenue papers, but he found that there was no reference of plots No. 15, 19 and 20 in the revenue papers. The abadi deh was having Khasra No. 284 and the plots were within that Khasra number. The plots No. 15 and 20 were demarcated in the presence of persons present. The report Ext.CW-1/A indicates that the appellants were present on the spot so also the respondent. As per report, the appellants refused to give statements after demarcation. 8. The appellants filed objections dated 8.6.1998 to the Local Commissioner report and took the objection that the demarcation of abadi is not permissible nor it is within the domain of Local Commissioner to give such demarcation. The Local Commissioner has given wrong and illegal demarcation. The demarcation was given without fixing proper boundaries and without …6… ascertaining the fixed points. The respondent filed reply to the objections and denied the objections. 9. CW-1, K.K. Sharma, has stated that he was appointed as Local Commissioner by the court. He visited the spot and executed commission and submitted report Ext.CW-1/A. The commission was executed in accordance with High Court Rules and standing orders of Financial Commissioner. This witness was cross-examined on behalf of the respondent as well as by the appellants. In the cross-examination conducted by the appellants, he has denied that demarcation of abadi deh is not permissible. In further cross- examination he has stated that he has referred about the unauthorized possession of the appellants. The Patwari Halka was with him. The parties pointed out two plots for fixing point and accordingly fixed points were taken. The demarcation was given on the basis of plots. 10. Statement of DW-1 Smt. Sarswati Devi was recorded on 20.11.1997. DW-1 was re-examined on 19.11.1998 in rebuttal to the Local Commissioner report and stated that the Local Commissioner had not carried out demarcation with ‘pake dande’. She has stated that the Local Commissioner had carried out demarcation wrongly. 11. CW-1, Local Commissioner in his statement has specifically stated that demarcation was carried out as per High Court Rules and Orders and standing orders of Financial Commissioner. He has not been suggested that no fixed points were ascertained at the time of demarcation. He has been generally suggested that demarcation was not conducted as per instructions. The Local …7… Commissioner has found huge encroachment made by the appellants. 12. The learned counsel for the appellants has contended that two courts below could not consider the demarcation report Ext.CW-1/A without deciding the objections filed by the appellants to demarcation report. The learned Sub Judge in judgment dated 8.2.1999 in paras 12 to 14 has specifically dealt with the objections of the appellants to the demarcation report Ext.CW-1/A. In paragraph 12 of the said judgment, the learned Sub Judge has noticed the contention of the learned counsel for the appellants that the Local Commissioner has not conducted the demarcation in accordance with standing orders issued by the Financial Commissioner and instructions contained under High Court Rules and Orders. The Local Commissioner has not taken permanent point for demarcating the boundaries of the disputed plots and, as such, the demarcation carried by him was illegal and no reliance can be placed upon such report. The learned Sub Judge has rejected all these contentions in the impugned judgment. 13. The learned Additional District Judge in the impugned judgment has also noticed the objection of the appellants that the court below has erred in relying the report Ext.CW-1/A. The learned Additional District Judge has recorded a finding of fact that demarcation of the plots has been conducted as per provisions of law and as per directions of the trial court. In ‘Mst. Rattani’ and ‘Om Parkash’, it has been held that the report of the Local commissioner cannot be relied upon and treated as evidence without first deciding …8… the objections made thereto by the party. In the present case, the learned Sub Judge has considered the objections of the appellants and rejected them at the time of final judgment. Therefore, it cannot be said that the learned Sub Judge without deciding the objections of the appellants has decided the case. The appellants in the facts and circumstances of the case cannot take any benefit from ‘Mst. Rattani’ and ‘Om Parkash’. The two courts below have rightly relied Local Commissioner report Ext.CW-1/A on the basis of material on record. DW-1 Smt. Sarswati Devi has not stated that during demarcation fixed points were not ascertained. On the contrary Local Commissioner has stated that he carried out demarcation as per High Court Rules and Orders and instruction of Financial Commissioner. The appellants have failed to make out a case that the Local Commissioner report Ext.CW-1/A is illegal and should not have been relied by the two courts below. There is no merit in the appeal. The substantial questions of law No. 1 to 3 are decided against the appellants. 14. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. July 22, 2010. (Kuldip Singh) (VT) Judge.