REPORTABLE

IN THE  SUPREME COURT OF INDIA     CIVIL APPELLATE JURISDICTION  

          CIVIL  APPEAL NO.   8285 OF 2009

RAM LAL & ORS. Appellant(s)

VS.

SALIG RAM & ORS.        Respondent(s)

J U D G M E N T

Dinesh Maheshwari, J.

This appeal by special leave is directed against the judgment and decree

dated 06.11.2007 in RSA No. 260 of 1995 whereby, the High Court of Himachal

Pradesh set aside the judgment and decree dated 06.06.1995 passed by the

District  Judge,  Bilaspur  in  Civil  Appeal  No.  154  of  1988  and  consequently,

dismissed  the  suit  (No.  23/1  of  1986)  filed  by  the  plaintiffs-appellants  for

prohibitory injunction and in the alternative, for recovery of possession of the land

in dispute.

2. At the outset, it could be noticed for a brief outline of the matter that the

plaintiffs-appellants  had  alleged  attempted  encroachment  over  the  land  in

question by the defendants.  The Trial  Court  dismissed the suit.  However,  the

1

First Appellate Court remitted additional issues for finding by the Trial Court on

the question as to whether defendants had encroached over the land in question

and to what extent; and for this purpose,  the Trial Court  was directed to appoint

a Local Commissioner and to decide the matter after inviting objections on the

report of the Commissioner. After report by the Commissioner, the defendants-

respondents raised objections which were rejected and thereafter, the Trial Court

returned its findings on the additional issues in favour of the plaintiffs. Thereafter,

the Appellate Court allowed the appeal and decreed the suit. However, in second

appeal by the defendants, the High Court found that the Local Commissioner had

not carried out demarcation in accordance with the applicable instructions; and

while ruling that such report could not be relied upon and while further holding

that there was no other evidence that the defendants had encroached over the

land of the plaintiffs, proceeded to allow the appeal by its impugned judgment

dated 06.11.2007.

3.      Thus, the question calling for determination in this appeal is as to whether

High Court was justified in setting aside the decree of First Appellate Court on the

ground  that  the  Local  Commissioner  had  not  carried  out  demarcation  in

accordance with the applicable instructions?

4.  In view of the short point involved, dilation on all the factual aspect is not

necessary. A brief reference to the relevant background aspects would  suffice.

The plaintiff-appellants had filed the suit leading to this appeal essentially with

2

the averments that they were owners and in possession of the land comprised in

Khasra No. 146, admeasuring 1-8 bighas at  village Saunkhar, Pargna Ajmerpur,

Tehsil Ghumarwin, District Bilaspur and the defendants-respondents, being the

owners  of  neighbouring  Khasra  No.  148  had  been  seeking  to  take  over

possession  and  to  raise  construction  on  a  part  of  their  land.  The  suit  was

contested by the defendants  by  filing their  written statement.  The Trial  Court

framed the following issues for determination of  the questions involved in the

matter:-

“1. Whether the plaintiffs are owners in possession over the suit land as alleged?OPP

2. If issue No. 1 is proved in affirmative, whether the defendants are interfering over the suit land as alleged? OPP

3. Whether the suit is not maintainable as alleged?OPD

4. Whether the suit is not within time as alleged? OPD

5. Whether the suit is not properly valued as alleged? OPD

6. Relief.”

5.     The  Trial  Court,  by  its  judgment  and  decree  dated  30.09.1988,  while

deciding  issue  No.  2  against  the  plaintiffs,  proceeded  to  dismiss  the  suit.

However, in the appeal preferred by the plaintiffs, the First Appellate Court, by its

order  dated  24.01.1991,  remitted  the  following  two  additional  issues  for

determination by the Trial Court:-

3

“2-A. Whether the defendants encroached upon the suit land, if so, to what extent and manner and since when its effect?OPP

2-B.  In  case  issue  No.  2-A  is  proved,  whether  the plaintiff is entitled to the alternative relief of possession? OPP”

The Trial Court was also directed to appoint a Local Commissioner and

after inviting objections in regard to the report  of  Commissioner,  to record its

findings  and  to  return  the  same  to  the  Appellate  Court.  The  Trial  Court,

accordingly,  appointed  a  Local  Commissioner;  invited  objections  on  the

Commissioner’s report; and after confirming the report, returned the findings on

the aforesaid additional issues in favour of the plaintiffs on 25.09.1991.

6. After receiving findings of the Trial Court, the First Appellate Court took up

Civil Appeal No. 154 of 1988 for final disposal. After examining the pleadings of

parties as also the oral and documentary evidence adduced by them coupled

with the report  of  Local  Commissioner,  the First  Appellate Court  came to the

conclusion that the disputed construction had been raised over the suit land and

the plaintiffs were entitled to the relief of possession as claimed in the alternative.

The  Appellate  Court  also  rejected  the  submissions  of  the  defendants-

respondents that they were ready to pay the price of the land in question or to

exchange the land. The First Appellate Court, therefore,  reversed the decree of

the Trial Court and decreed the suit as under:-

“In view of my findings on point No. 1 being in favour of the  appellants  and  as  against  the  respondents,  the

4

appeal filed by the appellants is accepted.  The suit of the appellants for possession as against the defendants is  decreed for  the  land  measuring  25  Biswansies  as shown  in  Tatima  Ext.  C-2  attached  with  the  Local Commissioner’s  report.   The decree  for  demolition is therefore,  passed  in  favour  of  the  appellants  and  as against the respondents for land shown in Tatima Ext. C-2, measuring 25 Biswansis which shall form part of the decree-sheet.   Defendants  are given two months time  to  remove  the  construction,  failing  which  the plaintiffs  shall  be  entitled  to  get  the  relief  through process  of  Court.   Decree-sheet  be  prepared accordingly.   The appeal  is  allowed along with costs, throughout.  The file be consigned to record room.”

7.    The High Court admitted the second appeal against the decree so passed

by the First Appellate Court on the following substantial questions of law:-  

"1. Whether the learned courts below were justified in rejecting  the  appellants’  objections  on  local commissioner’s report?

2.  Whether  the  demarcation  report  of  the  Local Commissioner, without considering MUSABI and other revenue record, was not illegal?

3. Whether the learned District  Judge was justified in remanding the case?

4. Whether the learned courts were justified in ignoring the defendants’ evidence which goes to the root of the case.”

8. The High Court, essentially with reference to the Division Bench decision

of the Court in the case of State of H.P. vs. Laxmi Nand and Others: 1992

(2)  SLC 307, observed that  the demarcating officer  was required to locate

three permanent points on different sides of Khasra No. 146  that was to be

5

demarcated; and when Local Commissioner did not fix such permanent points

and  there  was  no  reference  of  Musabi  or  Momi  in  the  report,  the  Local

Commissioner  had  not  carried  out  demarcation  in  accordance  with  the

applicable instructions.  For this reason, the High Court answered the relevant

questions in favour of the defendants, while observing, inter alia, as under:-

“16.....The  Local  Commissioner  did  not  fix  three permanent points on three different sides of khasra No. 146. There is no reference of Musabi or Momi in report Ex. C-1. The demarcating officer, as per State of H.P. vs. Laxmi Nand and others (supra), is also required to record the statements of interested parties before taking of three permanent points  to the effect that all of them have  agreed  and  accepted  the  three  points  as permanent  points  on  three  different  parts  of  the property. The lower appellant court as well as trial court have  not  considered  the  report  of  the  Local Commissioner, as per law laid down by this Court. The Local Commissioner has not carried out demarcation in accordance  with  the  instructions  for  carrying  out  the demarcation, therefore,  demarcation report  Ex. C-1 is not a legal piece of evidence, and can not be relied for decreeing the suit of the plaintiffs- respondents. There is  no  other  evidence  on  record  to  show  that  the appellants- defendants have encroached any portion of khasra  No.  146  owned  and  possessed  by  the respondents-  plaintiffs.  The  learned  lower  appellate court  has  erred  in  relying  the  Local  Commissioner’s report Ex. C-1 for decreeing the suit of the respondents- plaintiffs, therefore, the impugned judgment and decree are liable to be set-aside. The substantial questions of law  No.  1  and  2  are  answered  in  favour  of  the appellants-  defendants  and against  the  respondents- plaintiffs.”

9.    After answering the aforesaid questions in favour of the defendants and

while observing that there was no other evidence on record to show that the

6

defendants  had encroached over any portion of  Khasra No.  146,  the High

Court proceeded to allow the appeal and to dismiss the suit.

10.    Assailing the impugned judgment of the High Court, learned counsel for

the plaintiff-appellant has strenuously argued that the demarcation was carried

out by the Local Commissioner in the presence of parties and after hearing

them; and his report, when accepted by the Trial Court and the First Appellate

Court, could not have been discarded by the High Court only on the ground of

the so-called want of fixing three permanent points. Learned counsel has also

argued that apart from the report of Local Commissioner, there had been oral

and  documentary  evidence  on  record  to  prove  the  encroachment  by  the

defendants and as such, the High Court had been in error in assuming that

there was no other evidence besides the Local Commissioner’s report on the

question of encroachment by the defendants.  

11.    Per  Contra,  learned  counsel  for  the  defendants-respondents,  while

referring to the decision in Laxmi Nand (supra), has contended that the Local

Commissioner having not carried out demarcation in accordance with law, the

report in question was not a legal piece of evidence and could not have been

relied upon.  According to the learned counsel, there being no other evidence

on record to show that the defendants have encroached over any portion of

Khasra No. 146, the High Court has rightly allowed the second appeal and

dismissed the baseless suit filed by the plaintiffs-appellants.

7

12. Having given anxious consideration to the rival submissions, we are

clearly  of  the view that  the impugned judgment,  on  its  final  conclusion for

dismissal of the suit cannot be sustained and the entire matter deserves to be

remanded to the Trial Court for consideration afresh.

13. As noticed, in essence, the case of the plaintiffs has been that the

defendants were interfering with, and encroaching over, a part of their land

comprised in Khasra No. 146. The Trial Court dismissed the suit but the First

Appellate Court, at the initial stage, found it just and proper that further issues

be  determined  on  the  question/s  as  to  whether  the  defendants  had

encroached over the suit land and, if so, the extent and the manner thereof.

The Trial Court was further directed to appoint a Commissioner and to hear

the parties on objections, if any, and then to return the findings on additionally

framed  issue Nos. 2-A and 2-B.  The Trial Court did appoint a Commissioner

who carried out  demarcation; the objections to his report were rejected; and

thereafter,  the Trial Court returned the findings in favour of the plaintiffs.

14. After receiving findings from the Trial Court, the First Appellate Court

decided  the  appeal  by  its  detailed  judgment  dated  06.06.1995.  The  First

Appellate Court referred not only to the Commissioner’s report but also to the

oral and documentary evidence adduced by the parties. The First Appellate

Court also observed that the Commissioner had made an exhaustive report

after carrying out demarcation properly and there was nothing on record to

8

show that the report could not be accepted. The First Appellate Court, though

dealt  with the matter in sufficient detail  but  appear to have not taken into

consideration the method and procedure for carrying out such demarcation,

as delineated by the High Court of Himachal Pradesh in  the case of Laxmi

Nand (supra)  with reference to the applicable instructions and guidelines, as

issued by the Financial Commissioner under Section 100 of the Punjab Land

Revenue Act, 1887,  corresponding to Section 106 of the Himachal Pradesh

Land Revenue Act, 1953 (Himachal Pradesh Act No. 6 of 1954).    

15. It  appears  from the  observations  made by  the  High Court  in  the

present case that the Local Commissioner omitted to scrupulously follow the

applicable  instructions  for  carrying  out  such  demarcation  and  particularly

omitted to fix three reference points on different sides of the land in question.

However, the report  made by the Local Commissioner was accepted by the

Trial Court as also by the First Appellate Court. The question is: If the Local

Commissioner's  report  was  suffering  from  want  of  compliance  of  the

applicable instructions, what course was to be adopted by the High Court?   

16. An appropriate answer to the question aforesaid is not far to seek. In

the course of a civil suit, by way of incidental proceedings, the Court could

issue a Commission, inter alia, for making local investigation, as per Section

75 of the Code of Civil Procedure ("the Code" hereafter). The procedure in

relation to such Commission for local investigation is specified in Rules 9 and

9

10 of Order XXVI  of the Code. Suffice it to notice for the present purpose

that,  as  per  clause  (3)  of  Rule  10   of  Order  XXVI,  where  the  Court  is

disssatisfied with the proceedings of  such a Local  Commissioner,  it  could

direct such further inquiry to be made as considered fit. This clause (3) of

Rule 10 of Order XXVI of the Code reads as under:-

"Where the Court  is  for  any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit."  

17.   The fact that the Local Commissioner’s report,  and for that matter a

properly drawn up report, is requisite in the present case for the purpose of

elucidating the matter in dispute is not of any debate,  for the order dated

24.01.1991  passed  by  the  First  Appellate  Court  having  attained  finality

whereby, additional  issues were remitted for finding on the basis  of  Local

Commissioner’s report. In the given set of facts and circumstances, we are

clearly of the view that if the report of the Local Commissioner was suffering

from an irregularity   i.e.,  want  of  following the applicable  instructions,  the

proper course for the High Court was either to issue a fresh commission or to

remand the matter for reconsideration but the entire suit could not have been

dismissed for any irregularity on the part of Local Commissioner. To put it

differently, we are clearly of the view that if the Local Commissioner’s report

was found wanting in compliance of applicable instructions for the purpose of

demarcation, it was only  a matter of irregularity and could have only resulted

10

in discarding of such a report and requiring a fresh report but any such flaw,

by  itself,  could  have  neither  resulted  in  nullifying  the  order  requiring

appointment of Local Commissioner and for recording a finding after taking

his report nor in dismissal of the suit. Hence, we are unable to approve the

approach of High Court, where after rejecting the Commissioner’s report, the

High  Court  straightway  proceeded to  dismiss  the suit.  The plaintiffs  have

been asserting encroachment by the defendants on their land and have also

adduced oral and documentary evidence in that regard. As noticed, the First

Appellate Court  had allowed the appeal  and decreed the suit  filed by the

plaintiff  not only with reference to the Commissioner’s report but also with

reference to the other evidence of the parties. Unfortunately, the High Court

appears to have overlooked the other evidence on record.  

18. In the totality of  circumstances, in our view, for just  and effectual

determination of all the questions involved in the matter, the proper course is

of issuing a fresh Commission and for direction to the Trial Court to decide

the  entire  suit  afresh  on  the  issues  as  originally  framed  as  also  on  the

additional issues after taking the report of the Local Commissioner afresh and

affording an opportunity to the parties to submit their objections, if any.

19. Accordingly, this appeal is allowed in the manner that the judgment

and decree dated 06.11.2007 in RSA No. 260 of 1995 is set aside but the

said appeal is disposed of by setting aside the judgment and decree of the

11

subordinate Courts; and the suit filed by the plaintiffs-appellants is restored

for reconsideration by the Trial Court keeping in view the observations and

requirements foregoing.  

20. The parties through their respective counsel shall stand at notice to

appear  before  the  Trial  Court  on  05.03.2019.  The  Trial  Court  shall  be

expected to issue a fresh Commission immediately and after examining the

objections, if any, to the Commissioner’s report, to dispose of the suit afresh

expeditiously and preferably within a period of three months from the date of

appearance of  the parties.  Costs  of  the proceedings shall  follow the final

decision of the suit.              

...............................................J.          (ABHAY MANOHAR SAPRE)

          ...............................................J.

(DINESH MAHESHWARI)      1 New Delhi,  Dated:   4th  February, 2019.

12