Tuesday, 5 February 2019

Whether court should dismiss the suit if there is irregularity in court commissioner report?

 The fact that the Local Commissioner’s 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
Commissioner’s 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 Commissioner’s 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 Commissioner’s 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 Commissioner’s 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.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8285 OF 2009

RAM LAL VS. SALIG RAM 

Dinesh Maheshwari, J.
Dated: 4th February, 2019.

This appeal by special leave is directed against the judgment and decree
dated 06.11.2007 in RSA No. 260 of 1995 whereby, the High Court of Himachal
Pradesh set aside the judgment and decree dated 06.06.1995 passed by the
District Judge, 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 possession of the land
in dispute.
2. At the outset, it could be noticed for a brief outline of the matter that the
plaintiffs-appellants had alleged attempted encroachment over the land in
question by the defendants. The Trial Court dismissed the suit. However, the
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First Appellate Court remitted additional issues for finding by the Trial Court on
the question as to whether defendants had encroached over the land in question
and to what extent; and for this purpose, the Trial Court was directed to appoint
a Local Commissioner and to decide the matter after inviting objections on the
report of the Commissioner. After report by the Commissioner, the defendantsrespondents
raised objections which were rejected and thereafter, the Trial Court
returned its findings on the additional issues in favour of the plaintiffs. Thereafter,
the Appellate Court allowed the appeal and decreed the suit. However, in second
appeal by the defendants, the High Court found that the Local Commissioner had
not carried out demarcation in accordance with the applicable instructions; and
while ruling that such report could not be relied upon and while further holding
that there was no other evidence that the defendants had encroached over the
land of the plaintiffs, proceeded to allow the appeal by its impugned judgment
dated 06.11.2007.
3. Thus, the question calling for determination in this appeal is as to whether
High Court was justified in setting aside the decree of First Appellate Court on the
ground that the Local Commissioner had not carried out demarcation in
accordance with the applicable instructions?
4. In view of the short point involved, dilation on all the factual aspect is not
necessary. A brief reference to the relevant background aspects would suffice.
The plaintiff-appellants had filed the suit leading to this appeal essentially with
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the averments that they were owners and in 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 of neighbouring Khasra No. 148 had been seeking to take over
possession and to raise construction on a part of their land. The suit was
contested by the defendants by filing their written statement. The Trial Court
framed the following issues for determination of the questions involved in the
matter:-
“1. Whether the plaintiffs are owners in possession over
the suit land as alleged?OPP
2. If issue No. 1 is proved in affirmative, whether the
defendants 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 dismiss the suit.
However, in the appeal preferred by the plaintiffs, the First Appellate Court, by its
order dated 24.01.1991, remitted the following two additional issues for
determination by the Trial Court:-
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“2-A. Whether the defendants encroached upon the suit
land, if so, to what extent and manner and since when
its effect?OPP
2-B. In case issue No. 2-A is proved, whether the
plaintiff is entitled to the alternative relief of possession?
OPP”
The Trial Court was also directed to appoint a Local Commissioner and
after inviting objections in regard to the report of Commissioner, to record its
findings and to return the same to the Appellate Court. The Trial Court,
accordingly, appointed a Local Commissioner; invited objections on the
Commissioner’s report; and after confirming the report, returned the findings on
the aforesaid additional issues in favour of the plaintiffs on 25.09.1991.
6. After receiving findings of the Trial Court, the First Appellate Court took up
Civil Appeal No. 154 of 1988 for final disposal. After examining the pleadings of
parties as also the oral and documentary evidence adduced by them coupled
with the report of Local Commissioner, the First Appellate Court came to the
conclusion that the disputed construction had been raised over the suit land and
the plaintiffs were entitled to the relief of possession as claimed in the alternative.
The Appellate Court also rejected the submissions of the defendantsrespondents
that they were ready to pay the price of the land in question or to
exchange the land. The First Appellate Court, therefore, reversed the decree of
the Trial Court and decreed the suit as under:-
“In view of my findings on point No. 1 being in favour of
the appellants and as against the respondents, the
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appeal filed by the appellants is accepted. The suit of
the appellants for possession as against the defendants
is decreed for the land measuring 25 Biswansies as
shown in Tatima Ext. C-2 attached with the Local
Commissioner’s report. The decree for demolition is
therefore, passed in favour of the appellants and as
against the respondents for land shown in Tatima Ext.
C-2, measuring 25 Biswansis which shall form part of
the decree-sheet. Defendants are given two months
time to remove the construction, failing which the
plaintiffs shall be entitled to get the relief through
process of Court. Decree-sheet be prepared
accordingly. The appeal is allowed along with costs,
throughout. The file be consigned to record room.”
7. The High Court admitted the second appeal against the decree so passed
by the First Appellate Court on the following substantial questions of law:-
"1. Whether the learned courts below were justified in
rejecting the appellants’ objections on local
commissioner’s report?
2. Whether the demarcation report of the Local
Commissioner, without considering MUSABI and other
revenue record, was not illegal?
3. Whether the learned District Judge was justified in
remanding the case?
4. Whether the learned courts were justified in ignoring
the defendants’ evidence which goes to the root of the
case.”
8. The High Court, essentially with reference to the Division Bench decision
of the Court in the case of State of H.P. vs. Laxmi Nand and Others: 1992
(2) SLC 307, observed that the demarcating officer was required to locate
three permanent points on different sides of Khasra No. 146 that was to be
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demarcated; and when Local Commissioner did not fix such permanent points
and there was no reference of Musabi or Momi in the report, the Local
Commissioner had not carried out demarcation in accordance with the
applicable instructions. For this reason, the High Court answered the relevant
questions in favour of the defendants, while observing, inter alia, as under:-
“16.....The Local Commissioner did not fix three
permanent points on three different sides of khasra No.
146. There is no reference of Musabi or Momi in report
Ex. C-1. The demarcating officer, as per State of H.P.
vs. Laxmi Nand and others (supra), is also required to
record the statements of interested parties before taking
of three permanent points to the effect that all of them
have agreed and accepted the three points as
permanent points on three different parts of the
property. The lower appellant court as well as trial court
have not considered the report of the Local
Commissioner, as per law laid down by this Court. The
Local Commissioner has not carried out demarcation in
accordance with the instructions for carrying out the
demarcation, therefore, demarcation report Ex. C-1 is
not a legal piece of evidence, and can not be relied for
decreeing the suit of the plaintiffs- respondents. There
is no other evidence on record to show that the
appellants- defendants have encroached any portion of
khasra No. 146 owned and possessed by the
respondents- plaintiffs. The learned lower appellate
court has erred in relying the Local Commissioner’s
report Ex. C-1 for decreeing the suit of the respondentsplaintiffs,
therefore, the impugned judgment and decree
are liable to be set-aside. The substantial questions of
law No. 1 and 2 are answered in favour of the
appellants- defendants and against the respondentsplaintiffs.”
9. After answering the aforesaid questions in favour of the defendants and
while observing that there was no other evidence on record to show that the
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defendants had encroached over any portion of Khasra No. 146, the High
Court proceeded to allow the appeal and to dismiss the suit.
10. Assailing the impugned judgment of the High Court, learned counsel for
the plaintiff-appellant has strenuously argued that the demarcation was carried
out by the Local Commissioner in the presence of parties and after hearing
them; and his report, when accepted by the Trial Court and the First Appellate
Court, could not have been discarded by the High Court only on the ground of
the so-called want of fixing three permanent points. Learned counsel has also
argued that apart from the report of Local Commissioner, there had been oral
and documentary evidence on record to prove the encroachment by the
defendants and as such, the High Court had been in error in assuming that
there was no other evidence besides the Local Commissioner’s report on the
question of encroachment by the defendants.
11. Per Contra, learned counsel for the defendants-respondents, while
referring to the decision in Laxmi Nand (supra), has contended that the Local
Commissioner having not carried out demarcation in accordance with law, the
report in question was not a legal piece of evidence and could not have been
relied upon. According to the learned counsel, there being no other evidence
on record to show that the defendants have encroached over any portion of
Khasra No. 146, the High Court has rightly allowed the second appeal and
dismissed the baseless 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 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 Commissioner’s 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
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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
Commissioner's 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
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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 Commissioner’s 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
Commissioner’s 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 Commissioner’s 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 Commissioner’s 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 Commissioner’s 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.
19. Accordingly, this appeal is allowed in the manner that the judgment
and decree dated 06.11.2007 in RSA No. 260 of 1995 is set aside but the
said appeal is disposed of by setting aside the judgment and decree of the

subordinate Courts; and the suit filed by the plaintiffs-appellants is restored
for reconsideration by the Trial Court keeping in view the observations and
requirements foregoing.
20. The parties through their respective counsel shall stand at notice to
appear before the Trial Court on 05.03.2019. The Trial Court shall be
expected to issue a fresh Commission immediately and after examining the
objections, if any, to the Commissioner’s report, to dispose of the suit afresh
expeditiously and preferably within a period of three months from the date of
appearance of the parties. Costs of the proceedings shall follow the final
decision of the suit.
...............................................J.
(ABHAY MANOHAR SAPRE)
...............................................J.
(DINESH MAHESHWARI) 1
New Delhi,
Dated: 4th February, 2019.

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