G H RAM LAL & ORS. versus SALIG RAM & ORS. on 4 February 2019

[2019] 1 S.C.R. 1064

SUPREME COURT REPORTS

[2019] 1 S.C.R.

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RAM LAL & ORS.

v.

SALIG RAM & ORS.

(Civil Appeal No. 8285 of 2009)

BFEBRUARY 04, 2019

[ABHAY MANOHAR SAPRE ANDDINESH MAHESHWARI, JJ.]

Code of Civil Procedure, 1908:

Or.XXVI, r.10(3) – Suit for prohibitory injunction – DismissedCby trial court – First Appellate Court framed additional issues as towhether the defendants had encroached over the land in questionand to what extent – Remitted the additional issue to trial court forits finding by appointing Local Commissioner – Trial court afterperusing the report of the Local Commissioner returned its findingDon the additional issue in favour of plaintiffs – Thereafter FirstAppellate Court allowed the appeal and decreed the suit – In secondappeal, High Court dismissed the suit on the ground that report ofthe Local Commissioner could not be relied upon as the report wassuffering from lack of compliance of applicable instructions andthere was no other evidence proving encroachment by defendantsE– On appeal, held: As per Or.XXVI, r. 10(3) where the Court isdissatisfied with the proceedings of a Local Commissioner, it candirect further inquiry – Therefore, proper course for the High Courtwas either to issue a fresh Commission or to remand the matter forreconsideration – Entire suit could not have been dismissed for anFirregularity – High Court has also overlooked other evidence onrecord – For just and effectual determination of all the questions inissue, proper course is to issue a fresh Commission and for directionto the trial court to decide the entire suit afresh.

Allowing the appeal, the CourtG

HELD: 1. The First Appellate Court referred not only tothe Commissioner’s report but also to the oral and documentaryevidence adduced by the parties. The First Appellate Court alsoobserved that the Commissioner had made an exhaustive reportafter carrying out demarcation properly and there was nothing H

on record to show that the report could not be accepted. TheFirst Appellate Court, though dealt with the matter in sufficientdetail but appear to have not taken into consideration the methodand procedure for carrying out such demarcation, with referenceto the applicable instructions and guidelines, as issued by theFinancial Commissioner under Section 100 of the Punjab LandRevenue Act, 1887, corresponding to Section 106 of the HimachalPradesh Land Revenue Act, 1953. [Para 14][1071-E-F]

2. The procedure in relation to such Commission for localinvestigation is specified in Rules 9 and 10 of Order XXVI ofCPC. As per clause (3) of Rule 10 of Order XXVI, where theCourt is disssatisfied with the proceedings of such a LocalCommissioner, it could direct such further inquiry to be made asconsidered fit. [Para 16] [1072-C]

3. If the report of the Local Commissioner was sufferingfrom an irregularity, the proper course for the High Court waseither to issue a fresh Commission or to remand the matter forreconsideration, but the entire suit could not have been dismissedfor any irregularity on the part of Local Commissioner. Hence,the approach of High Court, where after rejecting theCommissioner’s report, the High Court straightaway proceededto dismiss the suit cannot be approved. The plaintiffs have beenasserting encroachment by the defendants on their land and havealso adduced oral and documentary evidence in that regard. TheFirst Appellate Court had allowed the appeal and decreed thesuit filed by the plaintiff not only with reference to theCommissioner’s report but also with reference to the otherevidence of the parties. The High Court appears to haveoverlooked the other evidence on record. [Para 17][1072-F-H;1073-A-B]

4. For just and effectual determination of all the questionsinvolved in the matter, the proper course is of issuing a freshCommission and for direction to the Trial Court to decide theentire suit afresh on the issues as originally framed as also onthe additional issues after taking the report of the LocalCommissioner afresh and affording an opportunity to the partiesto submit their objections, if any. [Para 18][1073-C]

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AState of H.P. v. Laxmi Nand and Others 1992 (2) SLC307– referred to.

Case Law Reference

1992 (2) SLC 307referred toPara 8

BCIVIL APPELLATE JURISDICTION: Civil Appeal No. 8285of 2009.

From the Judgment and Order dated 06.11.2007 of the High Courtof Himachal Pradesh, Shimla in R.S.A. No. 260 of 1995.

Mrs. Priya Puri, Ranjay Dubey, Ms. Vineeta, S.K. Puri, Advs. forCthe appellants.

Jetendra Singh, Ms. Manju Jetley, Advs. for the respondents.

The Judgment of the Court was delivered by DINESH MAHESHWARI, J. 1. This appeal by special leaveDis directed against the judgment and decree dated 06.11.2007 in RSANo. 260 of 1995 whereby, the High Court of Himachal Pradesh setaside the judgment and decree dated 06.06.1995 passed by the DistrictJudge, Bilaspur in Civil Appeal No. 154 of 1988 and consequently,dismissed the suit (No. 23/1 of 1986) filed by the plaintiffs-appellants for prohibitory injunction and in the alternative, for recovery of possessionEof the land in dispute.

2. At the outset, it could be noticed for a brief outline of the matterthat the plaintiffs-appellants had alleged attempted encroachment overthe land in question by the defendants. The Trial Court dismissed thesuit. However, the First Appellate Court remitted additional issues forFfinding by the Trial Court on the question as to whether defendants hadencroached over the land in question and to what extent; and for thispurpose, the Trial Court was directed to appoint a Local Commissionerand to decide the matter after inviting objections on the report of theCommissioner. After report by the Commissioner, the defendants-Grespondents raised objections which were rejected and thereafter, theTrial Court returned its findings on the additional issues in favour of theplaintiffs. Thereafter, the Appellate Court allowed the appeal and decreedthe suit. However, in second appeal by the defendants, the High Courtfound that the Local Commissioner had not carried out demarcation inaccordance with the applicable instructions; and while ruling that such H

report could not be relied upon and while further holding that there wasno other evidence that the defendants had encroached over the land ofthe plaintiffs, proceeded to allow the appeal by its impugned judgmentdated 06.11.2007.

3. Thus, the question calling for determination in this appeal is asto whether High Court was justified in setting aside the decree of FirstAppellate Court on the ground that the Local Commissioner had notcarried out demarcation in accordance with the applicable instructions?

4. In view of the short point involved, dilation on all the factualaspect is not necessary. A brief reference to the relevant backgroundaspects would suffice. The plaintiff-appellants had filed the suit leadingto this appeal essentially with the averments that they were owners andin possession of the land comprised in Khasra No. 146, admeasuring 1-8 bighas at village Saunkhar, Pargna Ajmerpur, Tehsil Ghumarwin,District Bilaspur and the defendants-respondents, being the owners ofneighbouring Khasra No. 148 had been seeking to take over possessionand to raise construction on a part of their land. The suit was contestedby the defendants by filing their written statement. The Trial Court framedthe following issues for determination of the questions involved in thematter:- “1. Whether the plaintiffs are owners in possession over thesuit land as alleged?OPP

2. If issue No. 1 is proved in affirmative, whether thedefendants are interfering over the suit land as alleged? OPP

3. Whether the suit is not maintainable as alleged?OPD

4. Whether the suit is not within time as alleged? OPD

5. Whether the suit is not properly valued as alleged? OPD

6. Relief.”

5. The Trial Court, by its judgment and decree dated 30.09.1988,while deciding issue No. 2 against the plaintiffs, proceeded to dismissthe suit. However, in the appeal preferred by the plaintiffs, the FirstAppellate Court, by its order dated 24.01.1991, remitted the followingtwo additional issues for determination by the Trial Court:- “2-A. Whether the defendants encroached upon the suit land, A

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Aif so, to what extent and manner and since when itseffect?OPP

2-B. In case issue No. 2-A is proved, whether the plaintiff isentitled to the alternative relief of possession? OPP”

The Trial Court was also directed to appoint a LocalBCommissioner and after inviting objections in regard to the report ofCommissioner, to record its findings and to return the same to the AppellateCourt. The Trial Court, accordingly, appointed a Local Commissioner;invited objections on the Commissioner’s report; and after confirmingthe report, returned the findings on the aforesaid additional issues inCfavour of the plaintiffs on 25.09.1991.

6. After receiving findings of the Trial Court, the First AppellateCourt took up Civil Appeal No. 154 of 1988 for final disposal. Afterexamining the pleadings of parties as also the oral and documentaryevidence adduced by them coupled with the report of LocalDCommissioner, the First Appellate Court came to the conclusion that thedisputed construction had been raised over the suit land and the plaintiffswere entitled to the relief of possession as claimed in the alternative.The Appellate Court also rejected the submissions of the defendants-respondents that they were ready to pay the price of the land in questionor to exchange the land. The First Appellate Court, therefore, reversedEthe decree of the Trial Court and decreed the suit as under:- “In view of my findings on point No. 1 being in favour of theappellants and as against the respondents, the appeal filedby the appellants is accepted. The suit of the appellants forpossession as against the defendants is decreed for the landFmeasuring 25 Biswansies as shown in Tatima Ext. C-2attached with the Local Commissioner’s report. The decreefor demolition is therefore, passed in favour of the appellantsand as against the respondents for land shown in Tatima Ext.C-2, measuring 25 Biswansis which shall form part of theGdecree-sheet. Defendants are given two months time to removethe construction, failing which the plaintiffs shall be entitledto get the relief through process of Court. Decree-sheet beprepared accordingly. The appeal is allowed along with costs,throughout. The file be consigned to record room.”

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7. The High Court admitted the second appeal against the decreeso passed by the First Appellate Court on the following substantialquestions of law:- “1. Whether the learned courts below were justified inrejecting the appellants’ objections on local commissioner’sreport?

2. Whether the demarcation report of the Local Commissioner,without considering MUSABI and other revenue record, wasnot illegal?

3. Whether the learned District Judge was justified inremanding the case?

4. Whether the learned courts were justified in ignoring thedefendants’ evidence which goes to the root of the case.”

8. The High Court, essentially with reference to the Division Benchdecision of the Court in the case of State of H.P. vs. Laxmi Nand andOthers: 1992 (2) SLC 307, observed that the demarcating officerwas required to locate three permanent points on different sides of KhasraNo. 146 that was to be demarcated; and when Local Commissioner didnot fix such permanent points and there was no reference of Musabi orMomi in the report, the Local Commissioner had not carried outdemarcation in accordance with the applicable instructions. For thisreason, the High Court answered the relevant questions in favour of thedefendants, while observing, inter alia, as under:- “16.....The Local Commissioner did not fix three permanentpoints on three different sides of khasra No. 146. There is noreference of Musabi or Momi in report Ex. C-1. Thedemarcating officer, as per State of H.P. vs. Laxmi Nand andothers (supra), is also required to record the statements ofinterested parties before taking of three permanent points tothe effect that all of them have agreed and accepted the threepoints as permanent points on three different parts of theproperty. The lower appellant court as well as trial court havenot considered the report of the Local Commissioner, as perlaw laid down by this Court. The Local Commissioner has notcarried out demarcation in accordance with the instructionsfor carrying out the demarcation, therefore, demarcationreport Ex. C-1 is not a legal piece of evidence, and can not A

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SUPREME COURT REPORTS

Abe relied for decreeing the suit of the plaintiffs- respondents.There is no other evidence on record to show that theappellants- defendants have encroached any portion ofkhasra No. 146 owned and possessed by the respondents-plaintiffs. The learned lower appellate court has erred inrelying the Local Commissioner’s report Ex. C-1 for decreeingBthe suit of the respondents- plaintiffs, therefore, the impugnedjudgment and decree are liable to be set-aside. The substantialquestions of law No. 1 and 2 are answered in favour of theappellants- defendants and against the respondents-plaintiffs.”

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9. After answering the aforesaid questions in favour of thedefendants and while observing that there was no other evidence onrecord to show that the defendants had encroached over any portion ofKhasra No. 146, the High Court proceeded to allow the appeal and todismiss the suit.

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10. Assailing the impugned judgment of the High Court, learnedcounsel for the plaintiff-appellant has strenuously argued that thedemarcation was carried out by the Local Commissioner in the presenceof parties and after hearing them; and his report, when accepted by theTrial Court and the First Appellate Court, could not have been discardedEby the High Court only on the ground of the so-called want of fixingthree permanent points. Learned counsel has also argued that apart fromthe report of Local Commissioner, there had been oral and documentaryevidence on record to prove the encroachment by the defendants and assuch, the High Court had been in error in assuming that there was noother evidence besides the Local Commissioner’s report on the questionFof encroachment by the defendants.

11. Per Contra, learned counsel for the defendants-respondents,while referring to the decision in Laxmi Nand (supra), has contendedthat the Local Commissioner having not carried out demarcation inaccordance with law, the report in question was not a legal piece ofGevidence and could not have been relied upon. According to the learnedcounsel, there being no other evidence on record to show that thedefendants have encroached over any portion of Khasra No. 146, theHigh Court has rightly allowed the second appeal and dismissed thebaseless suit filed by the plaintiffs-appellants.

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12. Having given anxious consideration to the rival submissions,we are clearly of the view that the impugned judgment, on its finalconclusion for dismissal of the suit cannot be sustained and the entirematter deserves to be remanded to the Trial Court for considerationafresh.

13. As noticed, in essence, the case of the plaintiffs has been thatthe defendants were interfering with, and encroaching over, a part oftheir land comprised in Khasra No. 146. The Trial Court dismissed thesuit but the First Appellate Court, at the initial stage, found it just andproper that further issues be determined on the question/s as to whetherthe defendants had encroached over the suit land and, if so, the extentand the manner thereof. The Trial Court was further directed to appointa Commissioner and to hear the parties on objections, if any, and then toreturn the findings on additionally framed issue Nos. 2-A and 2-B. TheTrial Court did appoint a Commissioner who carried out demarcation;the objections to his report were rejected; and thereafter, the Trial Courtreturned the findings in favour of the plaintiffs.

14. After receiving findings from the Trial Court, the First AppellateCourt decided the appeal by its detailed judgment dated 06.06.1995. TheFirst Appellate Court referred not only to the Commissioner’s report butalso to the oral and documentary evidence adduced by the parties. TheFirst Appellate Court also observed that the Commissioner had made anexhaustive report after carrying out demarcation properly and there wasnothing on record to show that the report could not be accepted. TheFirst Appellate Court, though dealt with the matter in sufficient detail butappear to have not taken into consideration the method and procedurefor carrying out such demarcation, as delineated by the High Court ofHimachal Pradesh in the case of Laxmi Nand (supra) with referenceto the applicable instructions and guidelines, as issued by the FinancialCommissioner under Section 100 of the Punjab Land Revenue Act, 1887,corresponding to Section 106 of the Himachal Pradesh Land RevenueAct, 1953 (Himachal Pradesh Act No. 6 of 1954).

15. It appears from the observations made by the High Court inthe present case that the Local Commissioner omitted to scrupulouslyfollow the applicable instructions for carrying out such demarcation andparticularly omitted to fix three reference points on different sides of theland in question. However, the report made by the Local Commissionerwas accepted by the Trial Court as also by the First Appellate Court.

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AThe question is: If the Local Commissioner’s report was suffering fromwant of compliance of the applicable instructions, what course was tobe adopted by the High Court?

16. An appropriate answer to the question aforesaid is not far toseek. In the course of a civil suit, by way of incidental proceedings, theBCourt 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 isspecified in Rules 9 and 10 of Order XXVI of the Code. Suffice it tonotice for the present purpose that, as per clause (3) of Rule 10 ofOrder XXVI, where the Court is disssatisfied with the proceedings ofCsuch a Local Commissioner, it could direct such further inquiry to bemade as considered fit. This clause (3) of Rule 10 of Order XXVI of theCode reads as under:-

“Where the Court is for any reason dissatisfied with theproceedings of the Commissioner, it may direct such furtherDinquiry to be made as it shall think fit.”

17. The fact that the Local Commissioner’s report, and for thatmatter a properly drawn up report, is requisite in the present case for thepurpose of elucidating the matter in dispute is not of any debate, for theorder dated 24.01.1991 passed by the First Appellate Court havingEattained finality whereby, additional issues were remitted for finding onthe basis of Local Commissioner’s report. In the given set of facts andcircumstances, we are clearly of the view that if the report of the LocalCommissioner was suffering from an irregularity i.e., want of followingthe applicable instructions, the proper course for the High Court waseither to issue a fresh commission or to remand the matter forFreconsideration but the entire suit could not have been dismissed for anyirregularity on the part of Local Commissioner. To put it differently, weare clearly of the view that if the Local Commissioner’s report wasfound wanting in compliance of applicable instructions for the purposeof demarcation, it was only a matter of irregularity and could have onlyGresulted in discarding of such a report and requiring a fresh report butany such flaw, by itself, could have neither resulted in nullifying the orderrequiring appointment of Local Commissioner and for recording a findingafter taking his report nor in dismissal of the suit. Hence, we are unableto approve the approach of High Court, where after rejecting theHCommissioner’s report, the High Court straightway proceeded to dismiss the suit. The plaintiffs have been asserting encroachment by thedefendants on their land and have also adduced oral and documentaryevidence in that regard. As noticed, the First Appellate Court had allowedthe appeal and decreed the suit filed by the plaintiff not only with referenceto the Commissioner’s report but also with reference to the otherevidence of the parties. Unfortunately, the High Court appears to haveoverlooked the other evidence on record.

18. In the totality of circumstances, in our view, for just andeffectual determination of all the questions involved in the matter, theproper course is of issuing a fresh Commission and for direction to theTrial Court to decide the entire suit afresh on the issues as originallyframed as also on the additional issues after taking the report of theLocal Commissioner afresh and affording an opportunity to the partiesto submit their objections, if any.

19. Accordingly, this appeal is allowed in the manner that thejudgment and decree dated 06.11.2007 in RSA No. 260 of 1995 is setaside but the said appeal is disposed of by setting aside the judgment anddecree of the subordinate Courts; and the suit filed by the plaintiffs-appellants is restored for reconsideration by the Trial Court keeping inview the observations and requirements foregoing.

20. The parties through their respective counsel shall stand atnotice to appear before the Trial Court on 05.03.2019. The Trial Courtshall be expected to issue a fresh Commission immediately and afterexamining the objections, if any, to the Commissioner’s report, to disposeof the suit afresh expeditiously and preferably within a period of threemonths from the date of appearance of the parties. Costs of theproceedings shall follow the final decision of the suit.

Kalpana K. Tripathy

Appeal allowed.

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