Case: RAM LAL Vs. SALIG RAM

of the view that the impugned judgment, on its final conclusion for dismissal of the suit cannot be sustained and the entire matter deserves to be remanded to the Trial Court for consideration afresh. 13. As noticed, in essence, the case of the plaintiffs has been that the defendants were interfering with, and encroaching over, a part of their land comprised in Khasra No. 146. The Trial Court dismissed the suit but the First Appellate Court, at the initial stage, found it just and proper that further issues be determined on the question/s as to whether the defendants had encroached over the suit land and, if so, the extent and the manner thereof. The Trial Court was further directed to appoint a Commissioner and to hear the parties on objections, if any, and then to return the findings on additionally framed issue Nos. 2-A and 2-B. The Trial Court did appoint a Commissioner who carried out demarcation; the objections to his report were rejected; and thereafter, the Trial Court returned the findings in favour of the plaintiffs. 14. After receiving findings from the Trial Court, the First Appellate Court decided the appeal by its detailed judgment dated 06.06.1995. The First Appellate Court referred not only to the Commissioners report but also to the oral and documentary evidence adduced by the parties. The First Appellate Court also observed that the Commissioner had made an exhaustive report after carrying out demarcation properly and there was nothing on record to show that the report could not be accepted. The First Appellate Court, though dealt with the matter in sufficient detail but appear to have not taken into consideration the method and procedure for carrying out such demarcation, as delineated by the High Court of Himachal Pradesh in the case of Laxmi Nand (supra) with reference to the applicable instructions and guidelines, as issued by the Financial Commissioner under Section 100 of the Punjab Land Revenue Act, 1887, corresponding to Section 106 of the Himachal Pradesh Land Revenue Act, 1953 (Himachal Pradesh Act No. 6 of 1954). 15. It appears from the observations made by the High Court in the present case that the Local Commissioner omitted to scrupulously follow the applicable instructions for carrying out such demarcation and particularly omitted to fix three reference points on different sides of the land in question. However, the report made by the Local Commissioner was accepted by the Trial Court as also by the First Appellate Court. The question is: If the Local Commissioners report was suffering from want of compliance of the applicable instructions, what course was to be adopted by the High Court? 16. An appropriate answer to the question aforesaid is not far to seek. In the course of a civil suit, by way of incidental proceedings, the Court could issue a Commission, inter alia, for making local investigation, as per Section 75 of the Code of Civil Procedure (the Code hereafter). The procedure in relation to such Commission for local investigation is specified in Rules 9 and 10 of Order XXVI of the Code. Suffice it to notice for the present purpose that, as per clause (3) of Rule 10 of Order XXVI, where the Court is disssatisfied with the proceedings of such a Local Commissioner, it could direct such further inquiry to be made as considered fit. This clause (3) of Rule 10 of Order XXVI of the Code reads as under:- Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit. 17. The fact that the Local Commissioners report, and for that matter a properly drawn up report, is requisite in the present case for the purpose of elucidating the matter in dispute is not of any debate, for the order dated 24.01.1991 passed by the First Appellate Court having attained finality whereby, additional issues were remitted for finding on the basis of Local Commissioners report. In the given set of facts and circumstances, we are clearly of the view that if the report of the Local Commissioner was suffering from an irregularity i.e., want of following the applicable instructions, the proper course for the High Court was either to issue a fresh commission or to remand the matter for reconsideration but the entire suit could not have been dismissed for any irregularity on the part of Local Commissioner. To put it differently, we are clearly of the view that if the Local Commissioners report was found wanting in compliance of applicable instructions for the purpose of demarcation, it was only a matter of irregularity and could have only resulted in discarding of such a report and requiring a fresh report but any such flaw, by itself, could have neither resulted in nullifying the order requiring appointment of Local Commissioner and for recording a finding after taking his report nor in dismissal of the suit. Hence, we are unable to approve the approach of High Court, where after rejecting the Commissioners report, the High Court straightway proceeded to dismiss the suit. The plaintiffs have been asserting encroachment by the defendants on their land and have also adduced oral and documentary evidence in that regard. As noticed, the First Appellate Court had allowed the appeal and decreed the suit filed by the plaintiff not only with reference to the Commissioners report but also with reference to the other evidence of the parties. Unfortunately, the High Court appears to have overlooked the other evidence on record. 18. In the totality of circumstances, in our view, for just and effectual determination of all the questions involved in the matter, the proper course is of issuing a fresh Commission and for direction to the Trial Court to decide the entire suit afresh on the issues as originally framed as also on the additional issues after taking the report of the Local Commissioner afresh and affording an opportunity to the parties to submit their objections, if any.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]12. Having given anxious consideration to the rival submissions, we are clearly of the view that the impugned judgment, on its final conclusion for dismissal of the suit cannot be sustained and the entire matter deserves to be remanded to the Trial Court for consideration afresh13. As noticed, in essence, the case of the plaintiffs has been that the defendants were interfering with, and encroaching over, a part of their land comprised in Khasra No. 146. The Trial Court dismissed the suit but the First Appellate Court, at the initial stage, found it just and proper that further issues be determined on the question/s as to whether the defendants had encroached over the suit land and, if so, the extent and the manner thereof. The Trial Court was further directed to appoint a Commissioner and to hear the parties on objections, if any, and then to return the findings on additionally framed issue Nos. 2-A and 2-B. The Trial Court did appoint a Commissioner who carried out demarcation; the objections to his report were rejected; and thereafter, the Trial Court returned the findings in favour of the plaintiffs14. After receiving findings from the Trial Court, the First Appellate Court decided the appeal by its detailed judgment dated 06.06.1995. The First Appellate Court referred not only to the Commissioners report but also to the oral and documentary evidence adduced by the parties. The First Appellate Court also observed that the Commissioner had made an exhaustive report after carrying out demarcation properly and there was nothing on record to show that the report could not be accepted. The First Appellate Court, though dealt with the matter in sufficient detail but appear to have not taken into consideration the method and procedure for carrying out such demarcation, as delineated by the High Court of Himachal Pradesh in the case of Laxmi Nand (supra) with reference to the applicable instructions and guidelines, as issued by the Financial Commissioner under Section 100 of the Punjab Land Revenue Act, 1887, corresponding to Section 106 of the Himachal Pradesh Land Revenue Act, 1953 (Himachal Pradesh Act No. 6 of 1954)15. It appears from the observations made by the High Court in the present case that the Local Commissioner omitted to scrupulously follow the applicable instructions for carrying out such demarcation and particularly omitted to fix three reference points on different sides of the land in question. However, the report made by the Local Commissioner was accepted by the Trial Court as also by the First Appellate Court.17. The fact that the Local Commissioners report, and for that matter a properly drawn up report, is requisite in the present case for the purpose of elucidating the matter in dispute is not of any debate, for the order dated 24.01.1991 passed by the First Appellate Court having attained finality whereby, additional issues were remitted for finding on the basis of Local Commissioners report. In the given set of facts and circumstances, we are clearly of the view that if the report of the Local Commissioner was suffering from an irregularity i.e., want of following the applicable instructions, the proper course for the High Court was either to issue a fresh commission or to remand the matter for reconsideration but the entire suit could not have been dismissed for any irregularity on the part of Local Commissioner. To put it differently, we are clearly of the view that if the Local Commissioners report was found wanting in compliance of applicable instructions for the purpose of demarcation, it was only a matter of irregularity and could have only resulted in discarding of such a report and requiring a fresh report but any such flaw, by itself, could have neither resulted in nullifying the order requiring appointment of Local Commissioner and for recording a finding after taking his report nor in dismissal of the suit. Hence, we are unable to approve the approach of High Court, where after rejecting the Commissioners report, the High Court straightway proceeded to dismiss the suit. The plaintiffs have been asserting encroachment by the defendants on their land and have also adduced oral and documentary evidence in that regard. As noticed, the First Appellate Court had allowed the appeal and decreed the suit filed by the plaintiff not only with reference to the Commissioners report but also with reference to the other evidence of the parties. Unfortunately, the High Court appears to have overlooked the other evidence on record18. In the totality of circumstances, in our view, for just and effectual determination of all the questions involved in the matter, the proper course is of issuing a fresh Commission and for direction to the Trial Court to decide the entire suit afresh on the issues as originally framed as also on the additional issues after taking the report of the Local Commissioner afresh and affording an opportunity to the parties to submit their objections, if any.