Local Commissioner – Demarcation report submitted in a earlier case even without any objection is inadmissible in subsequent litigation, even though between same parties, unless the same is duly proved and established by the party relying upon it.

Mr. Gurvinder Singh Gill J.:- Appellant-defendant Dalbir Singh has filed this appeal challenging judgment dated 18.7.2014 passed by Additional District Judge, Kaithal whereby decretal of suit filed by respondent-plaintiff for possession of suit property has been affirmed.

2. The case set up by the respondent-plaintiff is that appellant-defendant had encroached upon 15 square yards out of Khasra No.608 and 10 square yards out of Khasra No.609 owned by the respondent-plaintiff situated in Village Teontha, Tehsil and District Kaithal. The respondent-plaintiff averred that the adjacent land comprised in Khasra No.607 and 610 is owned by the appellant-defendant and that earlier the respondent-plaintiff had filed a suit for injunction and wherein upon demarcation conducted by the order of the Court, he came to know that appellant-defendant had encroached upon his land and thereafter he withdrew the said injunction suit and filed a suit for possession. The appellant defendant contested the suit and filed written statement denying all the material averments made in the plaint.

3. The parties was put to proof on the following issues :-

“1.Whether the plaintiff is owner of Baras falling in Khasra Nos. 608 and 609 ? OPP.

2. Whether the defendant encroached upon the red portion of the said Baras ? OPP.

3. Whether the plaintiff is entitled to a decree for possession of the said portion ?OPP.

4. Whether the suit of the plaintiff is not maintainable? OPD

5. Relief.”

4. The respondent-plaintiff, in order to prove his case, himself stepped into the witness box as PW-1. He examined PW-2 Ram Chander and PW-3 Ranbir Singh whereas the appellant-defendant in order to rebut the case of plantiff himself stepped into the witness box as DW-1 and examined DW-2 Randhir Singh.

5. The learned lower Court, upon consideration of evidence on record, returned its findings on issue nos. 1 to 3 in favour of the respondent-plaintiff holding therein that the appellant-defendant has encroached upon land belonging to the respondent-plaintiff and thus decreed the suit for possession in respect of the encroached area. The appellant-defendant challenged the said judgment and decree dated 9.2.2012 by way of filing an appeal which was dismissed by the learned Additional District Judge, Kaithal vide judgment dated 18.7.2014, which has been challenged by way of filing the present appeal.

6. The learned counsel for the appellant-defendant, while assailing the impugned judgment has submitted that the learned Courts below fell in error in relying upon demarcation report dated 20.9.2006 Ex.P-4 whereas the said report was neither proved nor had been conducted pursuant to any order passed by this Court. The learned counsel presses into service a judgment of Karnataka High Court reported as 1996(1) CivCC 159 Vokkaligara Sannappa vs. Vokkaligara Annaiah and Anr. to contend that a demarcation report submitted in an earlier case is inadmissible in a subsequent litigation unless the same is duly proved and established.

7. On the other hand, the learned counsel for the respondent-plaintiff has submitted that the demarcation conducted in the earlier litigation had been conducted pursuant to an order passed by the Court and that since the earlier litigation was amongst the same parties and that since no objection had ever been raised as regards admissibility of the said demarcation report at any stage during the proceeding of the civil suit, therefore, no such objection as regards admissibility of demarcation report should be entertained at this stage.

8. I have considered the rival submissions addressed before this Court.

9. It is not in dispute that the demarcation report Ex.P-4, was prepared pursuant to demarcation conducted on directions of the Court in an earlier civil Suit and not in the present suit. However, it is also not in dispute that even in the earlier suit, the parties to the lis were same. It is well settled that report of the Local Commissioner appointed by a Co