The report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record, and the Court has the authority to examine the Commissioner personally in open Court and to direct further inquiry if dissatisfied with the proceedings of the Commissioner.

Sanjay Karol, J.

This regular second appeal stands filed under the provisions of Section 100 of the Code of Civil Procedure. Concurrent findings of fact rendered by the Courts below are challenged by the contesting defendant Sh. Ram Dayal (appellant herein).

2. Plaintiff Daya Ram (respondent herein) filed a suit for permanent prohibitory injunction, alleging defendant Ram Dayal to have illegally raised construction over khasra No. 43 desiring the Court to pass a decree for demolition thereof. The said defendant admitted to have raised construction not over the suit land but his own khasra No. 47.

3. Based on the respective pleadings of the parties, trial Court framed the following issues:-

1. Whether the plaintiff is entitled to relief of permanent prohibitory injunction? OPP

2. Whether the plaintiff is entitled to relief of mandatory injunction? OPP

3. Whether the plaintiff is estopped to file this suit by his act and conduct? OPD

4. Whether the suit is bad for non-joinder and mis-joinder of parties? OPD

5. Relief.

4. Though initially vide judgment and decree dated 29.9.2001, trial Court dismissed the plaintiff’s suit, but however, in the plaintiff’s appeal the matter came to be remanded back to the trial Court for consideration afresh, vide judgment and decree dated 14.11.2003 passed by District Judge, Shimla in Civil Appeal No. 94-S/13 of 2001, titled as Daya Ram vs. Ram Dayal & another.

5. Subsequently, in terms of judgment and decree dated 16.5.2007, passed in Civil Suit No. 84/1 of 96/95, titled as Daya Ram vs. Ram Dayal & another, the trial Court decreed the plaintiff’s suit, holding the defendant to have illegally raised construction over khara No. 43. Trial Court placed reliance upon the report of the Local Commissioner as also revenue record (Ext PW-1/A).

6. Findings of fact, judgment and decree stands affirmed by the lower appellate Court in terms of its judgment and decree dated 3.7.2008, passed in Civil Appeal No. 4-S/13 of 2008, titled as Ram Dayal vs. Daya Ram & another. Hence, the present appeal.

7. The appeal stands admitted on the following substantial question of law:-

1. Whether the application filed by the plaintiff/appellant for appointment of the local commissioner because of the death of the earlier local commissioner and because of the denial of opportunity to examine/cross-examine the said commissioner could have been dismissed by the trial Court?

2. Whether the learned lower appellate court being a final court of fact and law was not duty bound to have discussed in detail the grounds as raised by the appellant before it?

3. Whether the suit of the plaintiff/appellant could have been decreed solely on the basis of the report of the local commissioner?

8. Having heard learned counsel for the parties as also perused the record, I am of the considered view that no ground for interference is made out in the present appeal, more so, when no question of law, much less substantial question of law, arises for consideration. It cannot be said that the courts below, mis-read or misconstrued the evidence (oral or documentary) in decreeing the plaintiff’s suit.

9. Insofar as substantial question of law No. 2 is concerned, there is no doubt that the appellate Court is duty bound to discuss the grounds raised in the appeal but then the points raised by the appellant at the time of arguing the appeal stands considered and dealt with by the lower appellate Court. Appellant never filed a review application, alleging non consideration of the issues raised by him at the time of final hearing. Even in the present appeal, no specific grievance, to such effect is made. Hence, the said question does not arise for consideration at all.

10. Insofar as substantial questions of law No. 1 and 3 are concerned, even they do not arise for consideration in the present appeal.

11. Record reveals that the issues came to be framed by the Court on 4.7.1995. Thereafter on the plaintiff’s application, as the order sheet reveals (order dated 24.2.1