The admissibility and acceptance of the demarcation report as evidence in a property dispute, and the significance of the defendants' failure to file objections against the report.

VINOD K.SHARMA, J.

1. This regular second appeal by defendant/appellants is directed against the judgment and decree dated 21.04.2009 passed by the learned Courts below vide which the appellants have been directed to demolish the wall constructed in khasra No.23/2/1 (1 kanal 19 marlas), which is under the ownership of the respondent/plaintiffs. The plaintiffs brought a suit for mandatory and prohibitory injunction, seeking demolition of wall ABCD constructed by the defendant/appellants in khasra No.23/2/1, and for restraining them from raising further construction.

2. The defendants did not dispute the facts that the plaintiffs were the owners of khasra No.23/2/1 measuring 1 kanal 19 marlas, but the case set up by the defendant/appellants was, that the wall is constructed in khasra No.23/1 (19 marlas) belonging to the defendant/appellants. The suit filed by the plaintiffs, therefore, deserved to be dismissed.

3. In support of the case, the appellants relied upon the demarcation report, said to have been carried out in the presence of the Panchayat, the reliance was also placed on an agreement under which the defendant/appellants were allowed to raise the wall. The case of the defendant/appellants was, that in spite of the matter having been settled, the plaintiffs have filed the suit seeking mandatory injunction, to which they were not entitled to, specially as the wall ABCD was constructed in the area falling in the ownership of the defendant/appellants. The learned trial Court appointed Local Commissioner i. e naib Tehsildar, who carried out demarcation and reported that wall ABCD was raised in khasra No.23/2/1 belonging to the respondent/plaintiffs.

4. The learned trial Court, on appreciation of evidence as also the report of the Local Commissioner, to which no objections were filed by the defendant/appellants, decreed the suit. The learned appellate Court also affirmed the findings recorded by learned trial Court and dismissed the appeal. Learned counsel for the appellants contends that the appeal raises the following substantial questions of law: -

"1. Whether the judgment and decree is outcome of misreading of evidence oral and documentary on record?

2. Whether the demarcation report of the Local Commissioner, which was carried out as per settled law by fixing pucca point, could be taken into consideration to decree the suit?"

5. In support of the substantial questions of law raised, the learned counsel for the appellants vehemently contended that the learned Courts below failed to notice the admission made by the plaintiff, while appearing in the witness box, to the effect, that the demarcation report Ex. D1 was carried out in the presence of the Panchayat, and that the wall was raised by the defendant/appellants thereafter. It is also contended by the learned counsel for the appellants, that the Naib Tehsildar while appearing in the witness box in his cross- examination had admitted that he had not fixed any pucca point while carrying out the demarcation, therefore, his report could not be relied upon.

6. On consideration, I find no force in the contentions raised by the learned counsel for the appellants. The Court had appointed the Local commissioner i. e. Naib Tehsildar, who submitted his report. The defendants chose not to file any objection against the said report, therefore, the report was per se admissible. Both the Courts below on appreciation of evidence, have recorded a concurrent finding of fact that the wall ABCD has been raised by the appellants in khasra No.23/2/1. The finding of fact recorded on appreciation of evidence cannot be said to be outcome of misreading of documentary or oral evidence, as contended. Once, no objections were filed to the report and it was per se admissible, it could not be said that because the pucca points were not fixed, though measurement was taken from the road in presence of parties. Therefore, there is no illegality committed in accepting the report, by Local commis