IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.370 of 1998 Date of decision : March 10, 2009 M/s Mohan Meakin Ltd. …Appellant. Versus Ram Kumar and another …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 No. For the Appellant : Mr. K.D. Sood, Advocate. For the Respondents : Mr. Shrawan Dogra, Advocate. Surjit Singh, Judge( Oral ) Plaintiff-appellant filed a suit for possession of one biswa area, claiming that it was part of his Khasra No.1777 and had been encroached upon by the defendants-respondents, by constructing a room and a toilet. Suit was contested by the defendants, who claimed that they had purchased adjoining Khasra No.1776, on which there existed a structure and that after demolishing that structure they raised new structure on old foundations, without making any encroachment on any adjoining land. 2. Plaintiff-appellant approached the trial Court to appoint a Local Commissioner, for delimitation of the adjoining properties of the parties and to report whether any encroachment had been made by the defendants on the property of the plaintiff-appellant, bearing Khasra No.1777. Whether reporters of the local papers may be allowed to see the judgment? …2… Local Commissioner gave the report that there was encroachment by the defendants on Khasra No.1777, to the extent of one biswa. 3. Learned trial Court did not believe the report of the Local Commissioner, holding that he had not fixed permanent points before demarcating the adjoining properties of the parties and the demarcation was not in accordance with the procedure laid down in Chapter I, Part M, of the High Court Rules and Orders. The suit was dismissed. 4. Plaintiff-appellant went in appeal to the Court of District Judge and urged that when the report of the Local Commissioner had been found to be defective, on account of non-fixation of permanent points, the only course open to the trial Court was to have asked the Local Commissioner to carry out the demarcation afresh and to submit his report or to have appointed another Local Commissioner. Learned first Appellate Court did not even notice the contention and dismissed the appeal, upholding the decree of the trial Court. 5. The present appeal was admitted on the following substantial questions of law: “1. Whether courts below have properly followed and applied the directions contained in Chapter I, Part M, Clause (i) of the High Court Rules and Orders, governing the procedure in a trial of civil suit? 2. Whether the courts below committed an error in rejecting the report of the local commissioner appointed for the purpose on certain infirmities and defects crept into the report without directing for the re-issue of the commission or giving a further opportunity to give a proper report in accordance with law …3… for the purpose of effectively deciding the case on merits? 3. Whether the courts below, particularly the learned trial Judge, committed an error in undertaking the question of correctness of the report simultaneously with the decision of the main case denying thereby an opportunity to the appellant to have a proper report brought on record to properly fix the boundaries of the property? 4. Whether in the facts and circumstances of the case the plaintiff was established to be the owner of the property and entitled to decree for possession by demolition of the temporary shed which had been illegally constructed? 5. Whether the court below has mis-construed and mis-represented the oral and documentary evidence particularly the revenue records to which a presumption of truth was attached and dismissed the suit of the plaintiff when the plea of the adverse possession was neither pleaded nor proved?” 6. I have heard the learned counsel for the parties and gone through the record. All the substantial questions of law are interconnected. 7. Admittedly, the plaintiff had obtained demarcation before the institution of the suit, but the record of that demarcation got misplaced with the revenue authorities. The plaintiff then approached the trial Court for appointing a Local Commissioner for delimitating the boundary of the adjoining properties of the parties. Local Commissioner carried out demarcation and submitted his report. The trial Court and the first Appellate Court felt that the Local Commissioner had not fixed permanent points before carrying out the demarcation and because of that his report could not be used for deciding the case. Now, when the trial Court and the first Appellate …4… Court found that the report was defective, on account of the Local Commissioner having not fixed permanent points or having not followed the procedure prescribed in the High Court Rules and Orders and also the instructions of the Financial Commissioner, the right course was to have re-directed the Local Commissioner to carry out the demarcation afresh, in accordance with the procedure and to give his report or to have appointed another Local Commissioner, instead of dismissing the suit holding that Local Commissioner’s report could not be relied upon by the plaintiff. 8. In view of the abovestated position, appeal is accepted. Judgments and decrees of the two Courts below are set aside and the case is remanded to the trial Court, with a direction to decide the same afresh, keeping in view the observations made hereinabove. Parties are directed to appear in the trial Court on 16th April, 2009. Record of the trial Court as also of the first Appellate Court be returned with a copy of this judgment, placed on the records of both the Courts below, immediately. March 10, 2009(sd) ( Surjit Singh ), J