RSA/2741/2005 of ROSHAN LAL SINGLA Vs SURESH KUMAR on 24 December 2008

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

RSA No.2741 of 2005(O&M)Date of decision: 24.12.2008

Roshan Lal Singla

......Appellant

Versus

Suresh Kumar......Respondent

CORAM:-HON'BLE MR. JUSTICE RAKESH KUMAR GARG

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Present:Mr. Jaideep Verma, Advocate for the appellant.

Mr. Vijay Lath, Advocate for the respondent.

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Rakesh Kumar Garg, J.

This is defendant's second appeal challenging the judgmentand decrees of the Courts below whereby suit of the plaintiff-respondent forpossession of the suit land after removal of the construction raised thereonand further restraining the defendant from interfering in the possession ofthe plaintiff over the suit land, has been decreed.

Brief averments contained in the plaint are that the plaintiff isthe hissedar co-sharer in the suit property measuring 1 kanal 8 marlas tothe extent of 22/28 share, situated within the revenue limits of villageNangal, Tehsil Anandpur Sahib. He purchased the aforesaid land from theprevious hissedar/co-sharer in possession Smt. Durga Devi by virtue ofregistered sale deed dated 6.7.1983 and another sale deed dated2.11.1995 executed by her for a valuable consideration in favour of theplaintiff and mutation was also sanctioned in his favour. It is furtheraverred that he remained in hissedari possession of the land in suit ashissedar/co-sharer when the defendant in the month of May, 1998 illegallyand forcibly dispossessed him from part of the suit land measuring 0K-3M

being its North-East part by way of raising unauthorized construction in theform of boundary wall and he is still in possession of the remaining land insuit as its hissedar/co-sharer. The defendant has absolutely no right, titleor interest whatever in the land in suit. He is claiming himself ashissedar/co-sharer in respect of the land of adjoining khasra No.445 andon that basis he took law into his hands in the first week of May, 1998 andforcibly dispossessed him from the land measuring 3 marlas. He furtherdispossessed him from the land measuring 0K-1M-6 Sarsahi out of the suitproperty illegally during the pendency of the suit in the month of March,2000 and thus, he is a trespasser and unauthorized occupant of the landmeasuring 0k-4M-6 Sarsahi forming North-East part of the suit propertyover which he has got no right, title or interest. He has been requestedmany a time to vacate the unlawful possession but he declined, hence thesuit.

The defendant appeared and controverted the claim of theplaintiff by raising preliminary objections that the suit is not maintainable inthe present form and suit is also time barred. He is also estopped by hisact and conduct to file the present suit as he has been silent spectator tothe long possession of the suit land by the defendant. On merits, it isdenied that the plaintiff was owner of the suit property as no sale deed wasexecuted in his favour. On the other hand, the defendant is in physicalpossession as owner of the land measuring 45 marlas since its purchasei.e. 25.10.1982. He has already constructed boundary wall around the saidplot immediately after purchasing the same. It is denied that he dis-possessed the plaintiff in his absence from part of the suit land because atthe time of raising the boundary wall and installation of the iron gate on theEastern side father of the plaintiff was very much present because hedemarcated the suit land. It is further pleaded that the defendant is owner in possession of his land since 1982 and that the plaintiff never raised anyprotest against the said construction therefore, the question of demolitionor removal of the same does not arise. He has been in physicalpossession of the land measuring 45 marla and his possession is open,hostile, un-interrupted and to the knowledge of the public at large and if heis found in possession of any part of the suit land, he has become owner ofthe same by way of adverse possession.

From the pleadings of the parties, the following issues were framed:-

”1.Whether the defendant has encroached upon the suitland to the extent of 4 ½ marlas on the northern andeastern part of the suit property? OPPland to the extent of 4 ½ marlas on the northern andeastern part of the suit property? OPP

2. If issue No.1 is proved whether the plaintiff is entitled after demolition and removal of unauthorizedconstruction for possession and consequential relief ofpermanent injunction?OPPconstruction for possession and consequential relief ofpermanent injunction?OPP

3. Whether the suit of the plaintiff is not maintainable inthe eyes of law?OPDthe eyes of law?OPD

4. Whether the plaintiff is estopped by his act andconduct?OPDconduct?OPD

5. Whether the defendant has become owner inpossession by way of adverse possession?OPDpossession by way of adverse possession?OPD

5(a) Whether the report of the LC is liable to be setaside in view of the objections of the defendant?OPDaside in view of the objections of the defendant?OPD

6. Relief.”

After hearing arguments of the counsel for the parties andconsidering the evidence on record, the trial Court held that the defendanthad encroached upon the suit land of the plaintiff-respondent to the extent of 4 ½ marlas on the northern and eastern part of the suit property and theplaintiff is entitled to the same after demolition. Issues No.3 and 4 weredecided against the defendant. Findings on issue No.5 were recordedagainst the appellant-defendant for want of evidence and issue No.5A wasdecided against the defendant and report of the Local Commissioner wasaccepted as objections raised by the appellant were not substantiated byany evidence. Consequently, the suit of the plaintiff-respondent wasdecreed.

Feeling dissatisfied with the impugned judgment and decreesof the trial Court, the defendant filed an appeal before the Lower AppellateCourt which was also dismissed vide judgment and decree dated17.5.2005 passed by the District Judge, Ropar.

Still not satisfied, the defendant has filed the instant appealchallenging the aforesaid judgment and decrees of the Courts below .

Learned counsel for the appellant has vehemently argued thatthe Courts below have erred in law while decreeing the suit of the plaintiff-respondent on the basis of report of Local Commissioner about the allegedencroachment as the same is not admissible in evidence withoutexamining the Local Commissioner under Order 26 Rule 10 CPC. It hasbeen further argued by the learned counsel for the appellant that the reportof the Local Commissioner is not the subject matter of the suit and,therefore, framing of any issue to that effect was wholly unwarranted andthus, the judgment and decrees of the Courts below are vitiated and areliable to be set aside. In support of his case, learned counsel has reliedupon a judgment of this Court reported as Balbir Dewan v. NaveenChanderAIR 1989 Punjab and Haryana 257.

On the other hand, learned counsel for the respondent hasvehemently argued that the Courts below on appreciation of evidence have

recorded a finding of fact that the appellant has encroached upon the suitland and no substantial question of law arises in this case. Learnedcounsel has further argued that the report of the Local Commissionerappointed by the Court has to be read in evidence without its being formallyproved and any party which takes an exception against the contents ofsuch a report is under an obligation to produce the Commissioner in Courtand to establish that the objections raised by it are well founded. Unlessand until such a course is adopted due weight has to be given to the reportsubmitted by the Local Commissioner and has prayed that the appeal iswithout any merit and the same deserves to be dismissed.

I have heard learned counsel for the parties and perused theimpugned judgment and decrees of the Courts below.

The contention raised by the learned counsel for the appellantis misconceived. Undisputedly, the Local Commissioner was appointed bythe Court who after demarcation of the land from the pucca points to thesatisfaction of the parties, submitted his report Ex.P1 which was dulysigned by them, wherein it was inter alia observed that the statements ofparties were also recorded and measurements were effected to thesatisfaction of the parties and he found encroachment of area of 4 marlas6 Sarsahi shown in the plan as ABCD. No doubt, the objections were filedby the appellant but he had not produced any evidence in support of thesaid objections except his own statement, nor he summoned the LocalCommissioner to question the findings of encroachment in the report.Order 26 Rule 10 CPC provides that report of Commissioner and theevidence taken by him shall be evidence in the suit and shall form part ofthe record, but the Court or with the permission of the Court, any of theparties to the suit may examine the Commissioner personally in open courttouching any of the matters referred to him or mentioned in his report or as

to his report or as to the manner in which he has made the investigation. Ithas been clearly held by this Court in “Jawahar Lal v. Mangu Ramthrough LRs, 1988 Civil Court Cases, 54 that “there is no provision forfiling objections to Local Commissioners report-Court or any of the partiesto the suit with the permission of the Court may examine the Commissionertouching any of the matters mentioned in his report or as to his report oras to the manner in which he has made the investigation and inspectionmade in the presence of the parties is ordinarily accepted by the Courtunless there is some inherent defect.” Likewise, it was further held in casereported asRaja Ram v. Ram Sarup1979 PLJ 12 that “report of LocalCommissioner appointed by the Court has to be read in evidence withoutits being formally proved. Party which takes exception against contents ofsuch report-must produce Local Commissioner in court and establish thatobjections raised are well-founded. Unless and until such a course isadopted-due weight must be given to report of Local Commissioner.”Further in another case reported as “Vadde Rajeswaramma v. Dr. V.L.Narasimha Charyulu1998(2) Recent Civil Reports, 617 it has beenclearly held “that it is open for the Court to examine the Commissioner onmatters referred to him in his report or as to the manner in which he hadmade the investigation. It is open for the parties also to examine theCommissioner on matters referred to him in his report or on the manner inwhich he had conducted the investigation. This is the only interpretationwhich can be placed upon sub-rule (2) of Rule 10 CPC. There is no otherinterpretation possible of this sub-rule. It is a different matter if neither theCourt nor any of the parties takes any objection to the report. In such asituation the report becomes final and becomes part of the record and alsocan be taken as piece of evidence. But, once a party objects to it andspecifically wants that the Commissioner be examined, the Court has no option but to examine the Commissioner. Unless that is done, theCommissioner's report cannot either form part of the record nor it canbecome a piece of evidence which could be relied upon at the stage ofdisposal of the suit.” Moreover, in the instant case the appellant-defendantremained contended with filing of the objections alone and failed toexamine the Local Commissioner and question his findings as to his reportand as such due weight has to be given to the report of LocalCommissioner in the light of well settled principle of law as aforesaid.

The judgment cited by the learned counsel for the appellant isnot applicable to the facts of the case. In that case, the plaintiff had filed asuit for partition and evidence on his behalf was concluded and when thecase was fixed for defendant's evidence he filed an application for theappointment of the Local Commissioner for demarcation of the suitproperty. Consequently, Tehsildar, Karnal was appointed as LocalCommissioner who submitted his report. Objections were raised againstthe said report. Thereafter, the trial Court appointed another LocalCommissioner who submitted his report. Against this report also objectionswere filed by the defendant. The main objection was that the LocalCommissioner has not demarcated the land as per instructions of theFinancial Commissioner and the High Court Rules and Orders.Accordingly, the trial Court framed an additional issue on the point of thereport of the Local Commissioner and the parties were asked to leadevidence. Against this order, the defendant filed a petition in this Court andit was held that there is no provision for filing objections to the report of theLocal Commissioner and the report of the Local Commissioner is to beordinarily accepted. In case, if any, such objections are filed, the Courtmay consider the same and if for any reason is dissatisfied with theproceedings of the Commissioner, it may direct such further inquiry to be

made as may be deemed fit but neither of the parties is entitled to claimany issue with respect to the report. It was further observed that the onlyprovision under sub-rule (2) of Rule 10 of Order 26 of the Code is toexamine the Commissioners personally in open Court either by the Courtitself or by any of the parties with the permission of the Court. It wasfurther held that the objections, if any, filed by the parties, shall beconsidered after the cross-examination, if any,of the Local Commissionerby the Court under Rule 10 of Order 26 of the Code and that too alongwith the other evidence at the time of final hearing. It is pertinent tomention here that in the above noted case, the Objector had raised theobjection that his objections should have been decided first before directingthe parties to lead evidence on this issue whereas in the present case nosuch objections were raised by the appellant and in fact it has beenasserted that the report of the Local Commissioner is liable to be set asidein view of the objections placed by the defendant and the issue wasclaimed by the appellant.

For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises.

Dismissed.

December 24, 2008ps

(RAKESH KUMAR GARG) JUDGE