IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 101 of 1998 Reserved on: 15.7.2008 Date of decision: July 22, 2008 Hama Ram …… Appellant/Plaintiff Versus Sahibo and another .. Respondents/Defendants Coram: The Hon’ble Mr.Justice Surinder Singh, J. Whether approved for reporting ?1 For the appellant : Mr Anand Sharma, Advocate. For respondent No.1 : Mr Naresh K. Thakur, Advocate. SURINDER SINGH,J. This regular second appeal, filed by the plaintiff- appellant, was admitted on the following substantial questions of law: 1) Whether a suit can be held to be not maintainable for non-joinder of necessary parties in a case where the defendant himself 1 Whether the reporters of Local Papers may be allowed to see the judgment ? 2 claimed a derivative title from the person alleged to be non-joinder as necessary party? 2) Whether the Local Commissioner is required to be produced as witness by a party in whose favour the report of the Local Commissioner has been made? 3) Could not the report of the Local Commissioner be read in evidence more especially in view of the fact that the party against whom the findings of the report of the local commissioner had filed any objection thereto? Admitted facts of the case are that Khasra No.330 is averred by the appellant, hereinafter to be called as “the plaintiff” and also proforma respondent-defendant and its adjoining Khasra No. 331 is owned by the respondent Sahibo, hereinafter to be called as “the defendant”. The plaintiff has alleged that a part of Khasra No. 330 was encroached by the defendant by raising a wall on Khasra No.330 by extending his compound and sought decree for mandatory injunction by demolishing the retaining wall of the compound. Contra, the defendant in his written statement has averred that he has not encroached upon the land of the plaintiff and the same is part of Khasra No.331 and according to him, the retaining wall is a part of his own land bearing Khasra No. 331. The defendant had also taken preliminary 3 objections, regarding maintainability of the suit, estoppel and limitation. On the pleadings of the parties, the learned trial court framed the following issues: 1. Whether contesting-defendant had encroached over the suit land measuring 0.0.13 biswansi comprised in Khasra number 330/1 and had constructed a danga forcibly without the consent of the plaintiff, as alleged? OPP 2. Whether the defendant is using the suit land comprised in Khasra No. 330 measuring only 3 biswas as passage for his newly constructed house, without the consent of the plaintiff, as alleged? OPP 3. Whether the suit is not maintainable in the present form as alleged? OPD 4. Whether the suit is bad for non joinder of Sh.Chhaju Ram as alleged? OPD 5. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD 6. Whether the suit is time barred, as alleged? OPD 7. Whether the suit land had not fallen into the share of the plaintiff, as alleged? OPD 8. Whether the defendant has easementary rights over the suit land, as alleged? OPD 9. Relief. Suit of the plaintiff was dismissed, as having failed to prove the encroachment, as alleged. 4 Feeling aggrieved and dissatisfied by the judgment and decree, the plaintiff filed an appeal before the learned District Judge, on the ground that the learned trial court failed to appreciate the evidence on record in its right perspective, therefore, the impugned judgment and decree be set aside. When the matter was pending before the learned first Appellate Court, it was taken up for reconciliation on 6.9.1996 and the parties were directed to be present in the court on 30.9.1996. On their presence on the said date, the parties prayed for more time as the demarcation of the disputed land was got to be done and revenue officials had required a certified copy of the musavi in respect of the land in question. Thus, the matter was adjourned and taken up on 31.10.1996. A prayer was made on that day on behalf of the appellant for issuance of requisite directions to the concerned revenue officials to carry out the demarcation and the learned trial court passed the following order: “ The prayer on behalf of the appellant that requisite directions may be issued to the concerned revenue officials to carry out demarcation with a view to bring about reconciliation between the parties, considered and allowed in the interest of justice. Let reference be made to the Sub Divisional Officer (Civil), Bharmour District Chamba (HP) to direct Field Kanungo, Bharmour to demarcate the suit land which comprises of khata Khatauni Noi.75 min/112, Khasra No.330/1 measuring 0-0- 13 Biswansi, situate in Mohal Panjsei, Tehsil Bharmour, vide 5 Jamabandi 1985-86 and ascertain whether respondent/defendant Shri Sahibo son of Sh. Chartu, resident of village Dhunka Pargna Bharmour has raised as stone retaining wall therein or not. The concerned Kanungo shall visit the spot after due and sufficient notice to the parties and his report shall be submitted to this court on or before 27.11.1996. The appeal be put up on 27.11.1996 for further reconciliation. It is directed that respondent Shri Sahibo shall appear in person on that date. Sd/ District Judge, Chamba. Report of the Field Kanungo was received after two adjournments and the matter was listed on 4.3.1997 for reconciliation. The matter was again adjourned twice for want of the presence of respondents. Since the respondents did not put in appearance the appellate court struck off the matter from conciliation and passed the following order on 18.4.1997: “Again the respondents are not present for reconciliation despite repeated opportunities already afforded. It appears that they are not interested in amicable settlement of the dispute inter-se the parties. Accordingly, the appeal is taken out of reconciliation proceedings. To com e up for arguments on 18.6.1997” Arguments were finally heard and the appeal was dismissed on merits 3.9.1997. Feeling aggrieved and dissatisfied by the impugned judgment and decree passed by the learned District Judge, Chamba, the appellant filed this regular second appeal, before this 6 Court on the grounds that the courts below had passed the judgment and decree on conjectures and surmises and erred in holding that the defendant had not encroached upon the land of the plaintiff and further that Chajju Ram was a necessary party, from whom the defendant had purchased the land and also that the first Appellate Court had wrongly ignored the report of the Local Commissioner, who had found encroachment on the land of the plaintiff. The appeal was admitted on the above substantial questions of law. I have heard the learned counsel for the parties and have gone through the records of the both the courts below very carefully. The first question raised by the plaintiff in this appeal is that non-impleadment of Chajju Ram, as a party in the suit, was not necessary, and the findings on issue No.4 returned against him by the trial court is wrong. In fact the defendant in his written statement had claimed that he had purchased the land i.e. Khasra No.331 from Chajju Ram by a oral sale, which fact is not disputed by the plaintiff. The case of the defendant is that the retaining wall was raised by him on Khasra Number 331 which was purchased by him from Chajju Ram. Since it is a suit qua Khasra number 330 filed by the plaintiff over which defendant has not claimed either his 7 possession or ownership but both the parties are claiming that the retaining wall stood on their respective Khasra numbers. In these circumstances, in my opinion Chajju Ram is not a necessary party, thus the suit of the plaintiff cannot be held not maintainable in his absence. Therefore, findings on issue No.4 against the plaintiff are wrong and are hereby reversed. Consequently, the issue No.4 is decided in favour of the plaintiff and against the defendant. Further the Learned counsel for the plaintiff has laid much stress on the report of the Local Commissioner. According to him, despite the fact that the Local Commissioner was not examined in the court, his report could not have been ignored. The Local Commissioner has clearly pointed out the encroachment made by the defendant on a part of his land, which goes against the defendant that he had constructed a retaining wall over a portion of his Khasra No. 331. To substantiate his version, the learned counsel has cited 1979 P.L.J. 12 Raja Ram versus Ram Sarup; AIR 1990 NOC 77 (Gauhati) Abdul Gani Mia alias Abdul Waheb and another versus Abdul Gani Mia; AIR 1988 Andhra Pradesh 202 Smt.Vadda Rajeswaramma versus Dr.V.L.Narasimha Charyula and others and AIR 1996 Supreme Court 2752 Tushar Kanti Bose and others versus Savitri Devi and others. 8 There is no dispute on the proposition of law as propounded by the learned counsel for the plaintiff. In all these cases the Local Commissioner was appointed by the court because it deemed necessary either to elucidate the matter in dispute or for the purpose of investigation. But in the present case, the plaintiff sought the indulgence of the court to facilitate him to get identified his land through the revenue agency for his satisfaction by demarcation for the purpose of conciliation. Order of the first appellate court quoted above makes this position very clear. It is the appellant who sought the indulgence of this court to facilitate him to get report. In fact Order XXVI Rule 9 of the Code of Civil Procedure, provides that: “ 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 mesne 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.” Which means that the Court is competent to appoint a Local Commissioner wherein it deems requisite or property for the purpose of elucidating any matter in dispute, but here in the instant case, the first appellate court did not deem it proper to appoint a local 9 commissioner in terms of order XXVI Rule 9 of the Code of Civil Procedure but it was only for the satisfaction of the plaintiff that too for the purpose of reconciliation or to facilitate the parties to arrive at some amicable settlement, which did not end in success, therefore, report of the revenue officer i.e. Field Kanungo also became redundant, as it was sought by the plaintiff for a limited purpose. Otherwise also the said report cannot be taken into consideration because the demarcation was conducted in the absence of the plaintiff. The plaintiff was not served for the date when the demarcation was fixed, thus it carries no value. It also suffers from various other defects that it was not conducted, as per the instructions issued by the Financial Commissioner and there is no reference as to how pucca points were fixed. The plaintiff also did not make any endeavour to adduce and prove the report of the local commissioner as additional evidence as per law by moving an application, under order 41 Rule 27 of the Code of Civil Procedure, to test its veracity because the land was demarcated in the absence of the defendant. Therefore, for the above reasons, it was rightly ignored from consideration by the lower appellate court. Further, the plaintiff could not have been put at an advantageous position by procuring the report through court by creating evidence against the defendant to prove his case. 10 In view of the aforesaid defects, report of the Field Kanungo cannot be read in evidence, to prove the case of the plaintiff which he otherwise failed to prove. Though PW 3 Shiv Kumar Patwari has testified on oath that he prepared the Tatima Ex. PC whereby he had shown the encroachment by the defendant but at the same time he has stated that he was not competent to give demarcation and the Tatima was prepared on the basis of the latha (a copy of musavi). PW2 Gurcharan Singh has stated that in the year 1989 he had only shown the respective Khasra numbers to the parties but he was not having musavi at the relevant time. He also failed to depose anything about the alleged encroachment made by the defendant. On the strength of the aforesaid evidence and in appeal on the basis of the report of the Field Kanungo, no allowance could be given to the plaintiff and the report of the filed Kanungo suffers from various defects, as stated above, therefore, it cannot be read in evidence, even if no objections were raised or filed by the defendant. Thus, for the aforesaid reasons, despite the reversal of findings on issue No.4 the suit of the plaintiff cannot be decreed in his favour as the plaintiff has failed to prove the encroachment over the suit land, as alleged. No other point pressed. 11 On account of the above findings and reasons therefor, the judgment and decree dismissing the suit passed by the learned trial court and affirmed in appeal requires no interference, as such the present appeal is dismissed. July 22, 2008, (Surinder Singh),J. (D)