G H RAM LAL & ORS.versusSALIG RAM & ORS.

1064                      [2019]REPORTS
                SUPREME COURT   1 S.C.R. 1064              [2019] 1 S.C.R.


 A                             RAM LAL & ORS.
                                        v.
                              SALIG RAM & ORS.
                         (Civil Appeal No. 8285 of 2009)
 B                           FEBRUARY 04, 2019
                     [ABHAY MANOHAR SAPRE AND
                       DINESH MAHESHWARI, JJ.]
             Code of Civil Procedure, 1908:
              Or.XXVI, r.10(3) – Suit for prohibitory injunction – Dismissed
 C
       by trial court – First Appellate Court framed additional issues as to
       whether the defendants had encroached over the land in question
       and to what extent – Remitted the additional issue to trial court for
       its finding by appointing Local Commissioner – Trial court after
       perusing the report of the Local Commissioner returned its finding
 D     on the additional issue in favour of plaintiffs – Thereafter First
       Appellate Court allowed the appeal and decreed the suit – In second
       appeal, High Court dismissed the suit on the ground that report of
       the Local Commissioner could not be relied upon as the report was
       suffering from lack of compliance of applicable instructions and
       there was no other evidence proving encroachment by defendants
 E
       – On appeal, held: As per Or.XXVI, r. 10(3) where the Court is
       dissatisfied with the proceedings of a Local Commissioner, it can
       direct further inquiry – Therefore, proper course for the High Court
       was either to issue a fresh Commission or to remand the matter for
       reconsideration – Entire suit could not have been dismissed for an
 F     irregularity – High Court has also overlooked other evidence on
       record – For just and effectual determination of all the questions in
       issue, proper course is to issue a fresh Commission and for direction
       to the trial court to decide the entire suit afresh.
             Allowing the appeal, the Court
 G           HELD: 1. 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
 H
                                       1064
                   RAM LAL v. SALIG RAM                              1065


on record to show that the report could not be accepted. The         A
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, with reference
to the applicable instructions and guidelines, as issued by the
Financial Commissioner under Section 100 of the Punjab Land
                                                                     B
Revenue Act, 1887, corresponding to Section 106 of the Himachal
Pradesh Land Revenue Act, 1953. [Para 14][1071-E-F]
      2. The procedure in relation to such Commission for local
investigation is specified in Rules 9 and 10 of Order XXVI of
CPC. As per clause (3) of Rule 10 of Order XXVI, where the
Court is disssatisfied with the proceedings of such a Local          C
Commissioner, it could direct such further inquiry to be made as
considered fit. [Para 16] [1072-C]
      3. If the report of the Local Commissioner was suffering
from an irregularity, the proper course for the High Court was
either to issue a fresh Commission or to remand the matter for       D
reconsideration, but the entire suit could not have been dismissed
for any irregularity on the part of Local Commissioner. Hence,
the approach of High Court, where after rejecting the
Commissioner’s report, the High Court straightaway proceeded
to dismiss the suit cannot be approved. The plaintiffs have been     E
asserting encroachment by the defendants on their land and have
also adduced oral and documentary evidence in that regard. 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. The High Court appears to have              F
overlooked the other evidence on record. [Para 17][1072-F-H;
1073-A-B]
      4. 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        G
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. [Para 18][1073-C]
                                                                     H
1066             SUPREME COURT REPORTS                            [2019] 1 S.C.R.


 A            State of H.P. v. Laxmi Nand and Others 1992 (2) SLC
              307– referred to.
                                  Case Law Reference
                1992 (2) SLC 307          referred to                Para 8
 B           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8285
       of 2009.
            From the Judgment and Order dated 06.11.2007 of the High Court
       of Himachal Pradesh, Shimla in R.S.A. No. 260 of 1995.
             Mrs. Priya Puri, Ranjay Dubey, Ms. Vineeta, S.K. Puri, Advs. for
 C     the 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 leave
 D     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
 E     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 First Appellate Court remitted additional issues for
 F     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-
 G     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
 H
                      RAM LAL v. SALIG RAM                                    1067
                    [DINESH MAHESHWARI, J.]

report could not be relied upon and while further holding that there was      A
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      B
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    C
to this appeal essentially with 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     D
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                                                E

      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                  F
      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       G
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:-
      “2-A. Whether the defendants encroached upon the suit land,
                                                                              H
1068             SUPREME COURT REPORTS                           [2019] 1 S.C.R.


 A           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
 B     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
 C     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
 D     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
 E     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 appeal filed
             by the appellants is accepted. The suit of the appellants for
             possession as against the defendants is decreed for the land
 F           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
 G           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.”

 H
                      RAM LAL v. SALIG RAM                                   1069
                    [DINESH MAHESHWARI, J.]

      7. The High Court admitted the second appeal against the decree        A
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?                                                                B
      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?                                                    C

      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        D
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 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         E
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                     F
      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
                                                                             G
      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           H
1070            SUPREME COURT REPORTS                         [2019] 1 S.C.R.


 A           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
 B
             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.”
 C           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 defendants had encroached over any portion of
       Khasra No. 146, the High Court proceeded to allow the appeal and to
       dismiss the suit.
 D            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
 E     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
 F     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
 G     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.
 H
                       RAM LAL v. SALIG RAM                                     1071
                     [DINESH MAHESHWARI, J.]

      12. Having given anxious consideration to the rival submissions,          A
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     B
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         C
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.                              D
       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           E
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               F
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           G
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.           H
1072             SUPREME COURT REPORTS                            [2019] 1 S.C.R.


 A     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
 B     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
 C     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
 D           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
 E     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
 F     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
 G     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
 H     Commissioner’s report, the High Court straightway proceeded to dismiss
                        RAM LAL v. SALIG RAM                                      1073
                      [DINESH MAHESHWARI, J.]

the suit. The plaintiffs have been asserting encroachment by the                  A
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
                                                                                  B
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            C
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        D
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            E
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.                          F


Kalpana K. Tripathy                                             Appeal allowed.



                                                                                  G




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