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2016 Supreme(HP) 366
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Dharam Chand Chaudhary, J.
Smt. Lila Devi and another - Petitioners
Versus
Jagdish Chand – Respondent
Civil Revision No. 59 of 2016
Decided On : 10-05-2016
For the petitioners:Mr. Ashwani Sharma and Mr. Mandeep Chandel, Advocates.
The objections to the report of the Local Commissioner can be raised at the time of final hearing in the suit, even if they are rejected by the trial court.
Headnote:
None
Fact of the Case:
The respondent-plaintiff filed a suit against the petitioners-defendants regarding the encroachment of suit land. The respondent-plaintiff filed an application for appointment of a Local Commissioner to demarcate the land and submit a report. The Local Commissioner conducted the demarcation and submitted the report, stating that the petitioners-defendants had encroached upon a small piece of land belonging to the respondent-plaintiff. The petitioners-defendants filed objections to the report, claiming that the demarcation was not conducted properly. The trial court rejected the objections. The petitioners-defendants challenged this order.
Finding of the Court:
The court held that the report of the Local Commissioner is a piece of evidence and not conclusive. It should be considered along with other evidence available on record. Either party can approach the court for examination of the Local Commissioner's report, but it is not always necessary to allow such permission. The aggrieved party can question the validity and admissibility of the report at the time of final hearing. The court cited a precedent from the High Court of Punjab and Haryana to support this view.
Ratio Decidendi: The objections to the report of the Local Commissioner can be raised at the time of final hearing in the suit, even if they are rejected by the trial court.
Result: No interference is warranted in the matter and the petition is disposed of accordingly.
Dharam Chand Chaudhary, J.
Challenge herein is to the order dated 10.03.2016 passed in an application registered as CMP No.(Civil Suit No. 622/09/RBT 125/2015) 397/13, whereby the objections preferred to the report of Local Commissioner have been rejected.
2. The petitioners are defendants in the trial Court. The dispute which has been taken to the trial Court by the respondent-plaintiff is qua the encroachment of suit land entered in Khata No. 4min, Khatauni No. 5min, Khasra No. 144, measuring 10 marlas situate in Tikka and Mauza Bamsan, Tehsil Bhoranj, District Hamirpur. The pleadings in the suit are complete. The evidence also stands recorded. It is at the stage of final hearing, the respondent-plaintiff has filed an application under Order 26 Rule 9 of the Code of Civil Procedure for appointment of Local Commissioner to demarcate the suit land on the spot and submit the report. It is that application, which was allowed and Tehsildar Bhoranj was appointed as Local Commissioner. The Local Commissioner has conducted the demarcation on the spot and submitted the report to the trial Court. The report reveals that the petitioners-defendants have encroached upon a small piece of land measuring 0-0-1 sarsai belonging to the respondent-plaintiff by raising construction of their house.
3. The petitioners-defendants have filed objections to the report of the Local Commissioner, mainly that the demarcation has not been conducted in accordance with the procedure prescribed therefor. Learned trial Court has considered the objections and rejected the same vide order passed on 10.03.2016. It is this order, which is under challenge in this petition.
4. The suit is at the stage of final hearing and the same according to learned counsel is now listed for the purpose on 20th May, 2016. It is well settled at this stage that the report submitted by the Local Commissioner is a piece of evidence and not conclusive. The same has to be read along with other evidence available on record. Either party to the suit may approach the Court ceased off the matter for examination of the Local Commissioner qua admissibility of the report. However, it is not always necessary to allow such permission, because the aggrieved party can otherwise question the validity and admissibility of the report submitted by the Local Commissioner at the time of final hearing. Such approach, in the considered opinion of this Court, facilitate the early disposal of the case. In the event of the challenge to the report of the Local Commissioner is not favourably redressed by the trial Court that affords a ground, which can be raised in the appeal. It is well settled that even if the objections raised to the report of Local Commissioner are rejected, the aggrieved party can still agitate the legality and validity thereof at the time of final hearing in the suit. The High Court of Punjab and Haryana in Umrao V. Smt. Minu @ Manju and others, AIR 2000 Punjab and Haryana 38 has also held so. The relevant text of this judgment is reproduced hereinbelow:
“6. The learned counsel for the petitioner at the outset urged that both the Rent Controller and the Appellate Authority were in error in relying upon the report of the Local Commissioner because, according to him, the Local Commissioner had not appeared as a witness. The petitioner in this process lost the right to cross-examine the Local Commissioner.
7. What is missing in the argument of the learned counsel is that, admittedly, to the report of the Local Commissioner, petitioner has filed objections. Objections had been considered and were dismissed. On the strength of this fact, learned counsel for the respondents contended that once objections have been dismissed, it becomes unnecessary to examine the Local Commissioner and the report could be read in evidence.
8. This Court in the case of Raja Ram v. Ram Sarup, 1979 Punjab Law Journal, 12, has dealt with this controversy. It was held that the report of the Local Commissioner a
