M/s Sports Station India Pvt. Ltd. & Others vs Ajay Arrey

Vivek Singh Thakur, J

Appellants/defendants have approached this Court, under Section 100 of the Code of Civil Procedure, by preferring present Regular Second Appeal against the judgment and decree dated 24.5.2016 passed by Additional District Judge Sirmaur District at Nahan in Civil Appeal No. 63-N/13 of 2015, titled M/s Sports Station India Ptv. Ltd. (SSIPL) and others Vs. Ajay Arrey, whereby judgment and decree dated 30.3.2015 passed by Civil Judge (Senior Division) Court No. 1, Paonta Sahib, District Sirmour, H.P. in Civil Suit No. 4/1 of 2009, titled as Ajay Arrey Vs. M/s Sports Station India Pvt. Ltd (SSIPL), has been upheld, affirming the judgment and decree passed in favour of plaintiff by the Trial Court for possession on the basis of title of land bearing Khata/Khatauni No. 109/160, Khasra Nos. 305/266/101/1 measuring 16 biswas situated in Mauza Bangran, Tehsil Paonta Sahib, District Sirmour, H.P., on the basis of demarcation report Ex. PX1 and encroached map Ex. PX2, forming these documents as part of decree.

Parties hereinafter, for convenience, are being referred as per their status before the Trial Court.

Plaintiff had filed a suit for passing a decree for possession of the suit land referred supra on the basis title of the suit land purchased by him from one Dharam Dass, sale deed whereof was executed by an Officer of the Court in execution of judgment and decree for specific performance dated 9.1.1995 passed in favour of plaintiff and against Dharam Dass in Civil Suit No. 69-1 of 1986.

It is case of the plaintiff that in the year 1981, after permission/sanction under Section 118 of the H.P. Land Revenue Act, plaintiff had purchased 5 bighas of land comprised in Khasra No. 267/102 and 265/101 in furtherance to agreement to sell entered into between the plaintiff and Dharam Dass regarding 15 bighas of land. The remaining 10 bighas of land was mortgaged by Dharam Dass with Bank and it was attached with the Bank. Later on Dharam Dass tried to avoid execution and registration of sale deed of balance land of 10 bighas, but plaintiff had succeeded in execution of sale deed in terms of judgment and decree passed in Civil Suit No. 69/1 of 1986 preferred by plaintiff against Dharam Dass.

Plaintiff had obtained loan for running business from H.P. Financial Corporation and 5 bighas of land was utilized for construction of factory. But for non payment of loan, due to failure of business, Himachal Pradesh Financial Corporation had taken possession of above referred 5 bighas of land alongwith factory and the same was sold by the HPFC to defendant No. 2 in the name of his Company M/s Revere Pent Land Pvt. Ltd and defendants had established shoe factory on the said land.

Later on defendant No. 2 changed name of Company from M/s Revere Pent Land Pvt. Ltd. to M/s Sports Station India Pvt. Ltd. (SSIPL), (defendant No. 1). Defendant No. 2 is Managing Director and defendant No. 3 is Manager of defendant No. 1-Company.

It is further case of the plaintiff that in December, 2006, plaintiff visited village Bangran Tehsil Paonta Sahib and found that defendants had encroached some part of the land and, therefore, in the year 2007, through his Power of Attorney in the year 2007, plaintiff had applied for demarcation of land by submitting application to Assistant Collector 2nd Grade, Paonta Sahib, whereupon Field Kanungo authorized by Assistant Collector 2nd Grade, visited the spot and demarcated the land and in the demarcation it was found that defendants had encroached upon 16 biswas of land out of Khasra No. 305/266/101/1 total measuring 10 bighas by raising boundary wall on the land of plaintiff. Demarcation report and tatima of encroachment was prepared by the Field Kanungo. Thereafter plaintiff requested the defendants on 31.10.2008 to demolish the boundary wall and to vacate the suit land and to handover vacant possession to the plaintiff, but defendants did not pay any heed to the request, whereupon in January, 2009 plaintiff filed the suit for possession.

Suit was contested by defendants by taking stand that neither defendants or their officials/representatives were summoned by Revenue Officer nor demarcation was conducted in accordance with law, and instructions of Financial Commissioner or fixed points were determined by Revenue Officer or adjacent owners were summoned or consent or dissent statements of any person were recorded. It was further stated that defendant No. 1 is not owner of the land and defendant No. 2 is not Managing Director nor defendant No. 3 is Incharge of the Company, as alleged in the plaint and further that vacant possession of the suit land was handed over to M/s Revere Pent Land Pvt. Ltd. by one Smt. Gian Kaur alongwith construction already existing thereon.

On the basis of pleadings of the parties, following issues were framed:-

“1. Whether plaintiff is entitled for relief of possession of suit  land on the basis of title as alleged?  ...OPP

Whether suit is not maintainable?  ...OPD

Whether plaintiff has no cause of action?  ….OPD

Whether suit is time barred?   ...OPD

Whether plaintiff has suppressed material facts as alleged? ...OPD

Whether the suit is bad for mis joinder of necessary parties? ..OPD

Relief.”

Plaintiff had examined 4 witnesses and had relied upon demarcation report Ex. PW-2/A, Tatima PW-2/B, copy of Field Book Ex. PW-2/C, sale deed Ex. PW-3/A, sale deed Ex. PW-4/A, tatima Ex. PW-4/B at the first instance and defendants have examined 2 witnesses and tendered affidavits in examination-in-chief as Ex. DW-1/A ad Ex. DW-2/A and document i.e. sale deed Ex. DX1.

In the Trial Court suit was taken up for final hearing on 7.8.2014 and after hearing the matter partly, it was adjourned for 2.9.2014. on 2.9.2014 arguments were heard and during arguments it was found by the Trial Court that demarcation report Ex. PW-2/A suggested that the demarcation conducted by the Field Kanungo was not satisfactory as it was not supported with Musabi on the basis of which demarcation was conducted, but was only supported with encroachment map and Field Book and Field Kanungo had failed to conduct the demarcation as per prescribed procedure as also approved by this High Court in State of H.P. Vs. Laxmi Nand & others reported in Shimla Law Journal 1993 (2) 1789 as demarcation was carried out without fixing undisputed three pucca points and, therefore, in terms of judgment passed by this High Court in Udey Ram & others Vs. Ram Lal reported in Latest H.L.J 2008 HP 296; whereby it has been held that whenever any Court entertains any doubt about the correctness of the demarcation relied upon by a party in a suit then it is the duty of the Court to appoint fresh Local Commissioner to demarcate the disputed area; considering it necessary for proper adjudication of the matter in dispute, fresh demarcation of the suit land was ordered.

It is also apt to record that defendants had agreed to share fee of the Local Commissioner, subject to demarcation of their land alongwith suit land. As agreed by the parties, Naib Tehsildar Paonta Sahib was appointed as Local Commissioner to demarcate the land of the parties and find our encroachment, if any, over the suit land.

After visiting the spot with prior information to both the parties and their counsel and by giving opportunity to both parties to file their objections, if any, Local Commissioner recorded his comments thereon.

On 21.11.2014, report of the Local Commissioner was received, however, parties sought time to file objections. After adjourning the matter four times, on 5th date on 21.1.2015, objections were filed by the defendants. Reply to the objections were filed on 23.2.2015, whereafter matter was listed for producing evidence of objector, if any.

On 21.3.2015 one witness Rajiv was examined as OW-1 on behalf of defendants and Local Commissioner’s report Ex. PX1 was tendered in evidence by the plaintiff alongwith encroachment map Ex. PX2.

Thereafter matter was heard on 27.3.2015 and 30.3.2015 and suit was decreed on 30.3.2015 in favour of plaintiff.

Being aggrieved by judgment and decree passed in favour of plaintiff, defendants filed appeal under Section 96 of the Code of Civil Procedure, detailed supra. After dismissal of appeal by Additional District Judge, present appeal has been preferred and it has been admitted on 26.12.2024 on the following substantial question of law:-

“1) Whether on account of mis-appreciation of the pleadings and misreading of the oral as well as documentary evidence available on record the findings recorded by both Courts below are erroneous and as such the judgment and decree impugned in the main appeal being perverse and vitiated is not legally sustainable?”

Learned counsel for the appellant has submitted that demarcation report placed on record as Ex. PX1, which was conducted in pursuance to order dated 2.9.2014, has not been proved on record in accordance with law, as the Local Commissioner has not been examined either by the plaintiff or by the Court by calling him as a Court Witness. It has been contended that it was not for the defendants to produce or to call the Local Commissioner to examine, but onus was upon the plaintiff to prove the demarcation report. As the Local Commissioner has not been subjected to cross-examination regarding the objections of the defendants, the demarcation report is not reliable and admissible piece of evidence.

It has been further submitted by learned counsel for the appellant that construction work of Industrial Unit was started by the defendants in the year 2004, which has been accepted by the plaintiff, whereas plaintiff has filed suit, that defendant has encroached the suit land, in December, 2006, which is not correct and, therefore, plea of plaintiff with respect to cause of action is not trustworthy and thus Trial Court as well as First Appellate Court have committed error in relying upon the Local Commissioner’s report as well as pleadings of plaintiff.

For adjudicating the objections of parties, with respect to admissibility of report of Local Commissioner without examining Local Commissioner, it would be relevant to refer provisions of Rules 9 and 10 of Order 26, which read as under:-

“9. Commissions to make local investigations:- .In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.

Procedure of Commissioner :- . (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.

(2) Report and deposition to be evidence in suit. - The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.

(3) Commissioner may be examined in person. – 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.”

The aforesaid Rule 10(1) of Order 26 of the Code of Civil Procedure unambiguously provides that Commissioner shall return evidence together with report in writing duly signed by him to the Court, and Rule 10(2) provides that report of the Commissioner and evidence taken by him shall be evidence in the suit and shall form part of the record. There is no necessity to examine the Local Commissioner for considering the report in evidence and making the same part of record. However, if so desired by any party, Commissioner can be examined personally in open Court touching any of the matters referred to him or mentioned in his report or as to his report or as to the manner in which he has made the investigation. In case of necessity, Court can also examine the Commissioner personally for the aforesaid purpose. In case of dissatisfaction, as provided under sub Rule (3), the Court may direct such further inquiry to be made as is deemed fit by the Court.

To adjudicate the point raised on behalf of appellants, following paras of judgment dated 25th May, 2016 passed in RSA No. 576 of 2008, titled as Ram Dyal Vs. Daya Ram & Another are relevant:-

“16. In Misrilal Ramratan & others, Mansukhlal and others vs. A.S. Shaik Fathimal (Dead) by LRs and others, 1995 Supp (4) Supreme Court Cases 600, it is held by the Hon’ble Supreme Court that:

“It is now settled law [not well settled now – SIC] that the report of the Commissioner is part of the record and that therefore the report cannot be overlooked or rejected on spacious plea of non-examination of the Commissioner as a witness since it is part of the record of the case.”

This Court in Lekh Ram & others vs. Gian Del & others, Latest HLJ 2006 (HP) 361 held the order ignoring the report of the Local Commissioner to be contrary to the provisions of Order 26 Rule 10(2) CPC.

This Court in Kishori Lal & others vs. Smt. Pingla Devi & others, 1999(1) Shim.L.C. 221, has held that by virtue of a specific provision engrafted in Rule 10 of Order 26, the report of the Commissioner and the evidence taken by him is evidence in the suit and shall form part of the record.

Similar view is taken by the Punjab and Haryana High Court in Raja Ram vs. Ram Sarup, 1979, P.L.J. 12, in which it was held that the report of the Local Commissioner appointed by Court has to be read in evidence without its being formally proved. Any party taking exception against the contents thereof, is under an obligation to produce the Commissioner in Court and to establish his objections to be well founded.

For proper elucidation of the matter in dispute, in full satisfaction, the Court, by consent, had appointed a particular person as a Local Commissioner. The said Local Commissioner did reduce his report into writing. Also the evidence taken by him was placed before the Court as part of the report. The report stood signed by him. The Court did not feel the requirement of examining the Commissioner. Also the Court did not deem it necessary to direct further inquiry with regard to the fact in issue/matter in dispute.

Only in the event of the report of the first Local Commissioner being unsatisfactory and the Court being dissatisfied with the same, the second Local Commissioner can be appointed [Samudrala Seetaramacharyulu & others vs. Samudrala Ranganayakamma & others, AIR 1958 Andhra Pradesh 304].

In the instant case such need was never felt.

A Division Bench of the Punjab and Haryana High Court in Balbir Dewan vs. Naveen Chander, AIR 1989 Punjab & Haryana 257, has also taken a similar view.”

In present matter, Local Commissioner was appointed with consent of the parties. They participated in the demarcation conducted by the Local Commissioner. Objections were also submitted on behalf of defendants and defendants have also examined Rajiv as OW-1 in support of objections filed by them. However, it was never requested by defendants to summon the Local Commissioner for his examination/cross-examination.

As evident from the judgments referred supra and provisions of Order 26 Rules 9 and 10 of the Code of Civil Procedure, in case of any doubt, parties had to summon the Local Commissioner. For non-examination of Local Commissioner in person, either by plaintiff or by the Court as a Court witness, there is no legal impediment to consider the report of Local Commissioner in evidence by forming it part of record. Therefore, Courts below have not committed any illegality, irregularity by considering the report of Local Commissioner Ex. PX1 alongwith encroachment Map Ex. PX2.

In present case, Court was never dissatisfied with the report of Local Commissioner placed on record as Ex. PX1 alongwith encroachment Map Ex. PX2 and, therefore, there was no cause for the Court to summon the Local Commissioner as a witness for his examination.

It was the defendants who were aggrieved by or objecting to the report of Local Commissioner, but no steps were taken by the defendants to summon the Local Commissioner for his examination. Therefore, for lapse on the part of defendants, non-examination of Local Commissioner, in view of provisions of Order 26 Rules 9 and 10 of the Code of Civil Procedure, as well as judgment referred supra, no fault can be found on the part of Courts below as well as plaintiff.

The admissions of the plaintiff regarding construction of Industrial Unit by the defendants in the year 2004, does not mean that he was having knowledge of encroachment at that time. Even if, it is considered that he was having knowledge of encroachment by the defendants at that time, the encroachment was identified and established at the time of demarcation, report whereof has been placed on record as Ex. PW-2/A. Though, this report has been declined by the Court, but it is a piece of evidence, at least, to demonstrate that plaintiff came to know about actual encroachment in the year 2008 and after declining the request of plaintiff by the defendants, suit has been filed in January, 2009.

The suit land was purchased by defendants vide sale deed dated 31.3.2003 Ex. DX. Limitation period for filing suit for possession on the basis of title is 12 years from the date of dispossession. Suit was filed on 9.1.2009, before expiry of 12 years from the purchase of the property by the defendants vide sale deed dated 31.3.2003. Therefore, there is no misreading, misconstruction or misinterpretation of pleadings or evidence on record, oral as well as documentary, in the impugned judgment and decrees passed by the Courts below.

Substantial question of law is decided in aforesaid terms.

In view of above discussion, appeal is dismissed and disposed of being devoid of merits. No orders for costs.