Ram Lal vs Salig Ram

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8285 OF 2009

RAM LAL & ORS. Appellant(s)

VS.

SALIG RAM & ORS. Respondent(s)

JUDGMENT

Dinesh Maheshwari, J.

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. Signature Not Verified At the outset, it could be noticed for a brief outline of the matter that the Digitally signed by ANITA MALHOTRA Date: 2019.02.04 plaintiffs-appellants had alleged attempted encroachment over the land in 17:28:57 IST Reason:

question by the defendants. The Trial Court dismissed the suit. However, the

1 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 defendants-

respondents 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

2 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 defendants-

respondents 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

4 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

5 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 respondents-

plaintiffs, 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 respondents-

plaintiffs.”

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

6 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. 7

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

8 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

9 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

10 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

11 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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