Validity of Local Commissioner's report and entitlement of plaintiff to maintain suit for possession against defendants.

Anil Kshetarpal, J.

CM-12259-C-2015

Delay in re-filing is condoned and the application is allowed.

CM-12260-C-2015

2. Application is under Order 41 Rule 27 for proving the report submitted by the Local Commissioner after demarcating the land on 05.10.2012. The application would be discussed while dealing with the main appeal.

Main Case

3. Plaintiff-appellant-Gurnek Singh is in regular second appeal against the concurrent finding of fact arrived at by the Courts below.

4. In the considered opinion of this Court, following substantial questions of law arise for consideration:-

1. Whether a report submitted by the Local Commissioner appointed by the Court under Order 26 Rule 9, Code of Civil Procedure in the suit can only be admitted in evidence if the Local Commissioner appears in the witness-box or such report being part of the Court file, need no formal evidence before it is taken into consideration by the Court?

2. Whether the Court is justified in dismissing the suit on a ground which is neither part of the pleadings nor any issue has been framed thereupon.

FACTS

5. Plaintiff filed a suit for possession of the property measuring 2 kanals and two marlas comprised in Khasra No.20//8/2/2, 107 in Khata No.282/394 situated in the abadi of village Chuharpur, District Nawanshahr. It is the case of the plaintiff that he and his brothers are co-owners in the suit property. However, defendants No.1 to 3 who were totally strangers as they are neither co-owners nor co-sharers and having no concern with the suit property have taken over forcible and illegal possession of the same and raised construction on some portion of permanent nature.

6. Defendants No.1 to 3 contested the suit, apart from formal objections, they pleaded that the property in dispute is part of ancestral house of the defendants and they have been residing in the house/property in dispute since the time of their fore-fathers. It was pleaded that Gurnek Singh is owner of only two marlas of land as per the revenue record whereas the remaining property belongs to defendants No.4 to 6.

7. Since the dispute which required adjudication was to the extent of encroachment as alleged by the plaintiff and disputed by the defendants, therefore, the Court during the pendency of the suit appointed a Local Commissioner under Order 26 Rule 9, CPC. The Local Commissioner, a revenue official visited the spot and carried out the demarcation and submitted his report dated 05.10.2012 reporting that defendant No.1 has encroached upon one marla of land and defendant No.2 has encroached upon one kanal and two marlas.

8. Both the Courts dismissed the suit filed by the plaintiffs on two grounds:-

(i) Report of the Local Commissioner has not been proved by examining the Local Commissioner in evidence.

(ii) As per the revenue record, the land is owned by the Panchayat Deh and hence, plaintiff has no locus to file the suit. Now the stage is set for considering the question of law.

Question No.1

(i) Whether a report submitted by the Local Commissioner appointed by the Court under Order 26 Rule 9, Code of Civil Procedure in the suit can only be admitted in evidence if the Local Commissioner appears in the witness-box or such report being part of the Court file, need no formal evidence before it is taken into consideration by the Court?

9. The Local Commissioner is appointed by the Court under Order 26 Rule 9, CPC to carry out local investigation. The Local Commissioner is basically an official of the Court who has been directed to carry out the local investigation and submit a report. Such report is not required to proved by examining the Local Commissioner in the evidence. Report of the Local Commissioner is part of the Court file and required to be considered by the Court without any formal proof. Any of the parties having objection to the report can file the objections and summon such Local Commissioner to be examined in the Court. The report of the Local Commissioner cannot be excluded from consideration