RSA No. 2742 of 2006 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2742 of 2006 Date of Decision: 7.8.2009 Dharam Pal and others ......Appellants Versus Gaj Ran and another .......Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri Pankaj Katia, Advocate, for the appellant. Shri Sachin Mittal, Advocate, for the respondents. HEMANT GUPTA, J. (Oral). Legal heirs of deceased-defendant Mam Chand, are in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby the suit for possession of portion marked as EBCF in the site plan, was decreed. It is the case of the plaintiffs that they are owners to the extent of 5/12th share in the land comprising in Khewat No. 108 measuring 2 kanals situated in village Chandanwas, Tehsil and District Rewari. On the eastern side of the plot of Khasra No. 160, there is plot of defendant and RSA No. 2742 of 2006 (2) that the defendant has encroached upon portion show in blue colour in the site plan by letters `ABCD' and on the portion shown with red colour by letters `EBCF'. The defendant denied the allegation of the plaintiffs and disputed the correctness of the site plan filed by the plaintiffs. It was alleged that the defendant has not encroached upon any portion of the plot of the plaintiff and that demarcation done by the Local Commissioner was alleged to be wrong. Sadar Kanungo, was appointed as Local Commissioner by the learned trial Court vide order dated 1.3.2001. The Local Commissioner furnished his report on 26.5.2001. On the basis of the said report and other evidence produced by the parties, the learned trial Court found that the defendant has encroached upon portion of `1 karam x 12 karams' on the eastern side shown in blue colour EBCF in the site plan Exhibit PW3/A. The Court found that the defendant has not cross-examined the Local Commissioner, therefore, the report of the Local Commissioner, appointed by the Court is admissible in evidence. In appeal an argument was raised that in respect of the same property, demarcation report Exhibit PW1/A dated 6.11.1993 has not found any encroachment upon the land of the plaintiff. It was found that such report is not relevant for the reason that the report dated 26.5.2001 of the Local Commissioner appointed by the Court is evidence in the suit, whereas the said report Exhibit PW1/A has not been proved by the defendants nor such report was accepted in the suit in which it was purportedly filed. An application for additional evidence filed by the plaintiff to produce the judgment of Civil Suit No.890 of 1993, wherein RSA No. 2742 of 2006 (3) such report was filed and also judgment in appeal was also found to be without any merit as such judgment was not relevant for the purpose of determination of the controversy in the present proceedings. Learned counsel for the appellant has vehemently argued that on 19.7.2002, the learned trial Court passed an order on an application filed by the plaintiff to the effect that the report of the Local Commissioner is not evidence. Therefore, the said report could not be made basis to decree the suit filed by the plaintiff. Even if such an order has been passed by the learned trial Court, it is an interim order and such interim order will not govern the final proceedings. In terms of Order 26 Rule 10 CPC as interpreted by the Division Bench of this Court in Balbir Dewan Cold Storage and General Mills v. Naveen Chander 1989(1) PLR 677, the report of the Local Commissioner is per-se evidence in the said case. It is for the aggrieved party to cross-examine the Local Commissioner to test the veracity of his report. However, the appellant has not cross-examined the Local Commissioner. Therefore, the appellant cannot be permitted to dispute the correctness of the report of the Local Commissioner. Such is the finding of the learned trial Court as well. The additional evidence sought to be produced by the appellant has been rightly declined, as the report referred to by the appellant Exhibit PW1/A was not even proved in the aforesaid suit. Therefore, the judgment and decree passed by the trial Court and in appeal in those proceedings would not be relevant for determining the issue raised in the present proceedings, when the evidence on record supports the finding that the defendant has encroached upon the land of the plaintiff. Consequently, I do not find any patent illegality or material RSA No. 2742 of 2006 (4) irregularity in the finding recorded or that the finding recorded gives rise to any substantial question of law in the present second appeal. Hence, the present appeal is dismissed. (HEMANT GUPTA) JUDGE 07-08-2009 ds