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Judgment
This Second Appeal under Section 100 CPC has been filed against the judgment and decree dated 1-11-2001 passed by District Judge, Vidisha in Regular Civil Appeal No. 6-A/2001, affirming the judgment and decree passed by Civil Judge Class - I, Kurwai, Distt. Vidisha in Civil Suit No. 20-A/1991 by which the suit filed by the appellants was dismissed.
The suit was filed by Shankarlal who died during the pendency of the suit and the present appellants are the legal representatives of Shankarlal.
The defendant no.1 Halku is reported to be dead, whereas defendant no.2 Munna and defendant no. 3 Bhavuti have refused to accept the notice. No application has been filed by the appellants for substituting the legal heirs of defendant No.1 Halku. The defendant no.2 Munna is the son and one of the legal representative of defendant no.1 Halku, therefore, the appeal against defendant no.1 Halku, would not abate. Since, respondents no.2 Munna and respondent no.3 Bhavuti have refused to accept the notice, therefore, they are treated to be served.
The necessary facts for the disposal of the present appeal in short are that the appellants filed a civil suit for possession on the ground that they are the owner of Survey No. 181,182,183,184,185 and 178 total area 1.984 hectares situated in village Layra Tahsil Kurwai, Distt. Vidisha. The plaintiff is the resident of Bina and use to come to Lyra. Since, the land of the defendants no.1 to 3 is adjoining to the land of the plaintiff with a mud boundary (Medh) separating their fields, therefore, taking advantage of this position, the defendants no. 1 and 2 have encroached upon 3 bigha of land of Survey No. 183,184,185 and the defendant no. 3 has encroached upon the entire 8 bigha of land of Survey No. 178. Thus, the suit for recovery of possession was filed.
The defendants no. 1 to 3 filed their joint written statement and denied the plaint averment and stated that they have not encroached upon the land belonging to the plaintiff. The plaintiff has also not disclosed the boundaries of the land in dispute.
The Trial Court after recording evidence of both the parties, decreed the suit by judgment and decree dated 18-12-1992.
Being aggrieved by the Judgment and decree passed by the Trial Court, the defendants no. 1 and 2 filed a Regular Civil Appeal which was registered as Civil Appeal No. 64A/1993. The said appeal was allowed by order dated 20-1-1997 and after setting aside the judgment and decree passed by the Trial Court, the case was remanded back with a direction to the plaintiff to disclose the boundaries, and the Trial Court shall issue a Commission for the spot report and in case, the pleadings are amended then opportunity shall be given to the respective parties, to lead further evidence.
After remand, the Trial Court directed the plaintiff to file the map and accordingly on 7-3-1998, the plaintiff produced the map and the defendants also sought time to produce map in rebuttal. Accordingly, the defendants also produced their map on 20-8-1998. Thereafter, the Trial Court fixed the case for recording of evidence to prove the map. However, it appears that on 8-9-1994, the defendants no. 1 to 3 filed an application under Order 26 Rule 9 C.P.C. for appointment of Commissioner. By order dated 22-9-1994, the Trial Court came to a conclusion that the maps produced by the parties are same and since, the plaintiff has disputed the boundaries, therefore, it would be appropriate to appoint the Commissioner, and accordingly, Court Commissioner was appointed for spot inspection.
The Commissioner, in the presence of defendant no. 1 and 2 the parties as well as Narayan Son of Halku and the appellants inspected the spot and prepared his report. According to this report, the Commissioner had found that Narayan Son of Halku has encroached upon 0.080 hectares of Survey No. 185, 0.090 hectares of Survey No. 184, 0.030 hectare of Survey No. 183 and 0.030 hectares of Survey No. 181 total area 0.230 hectares.
The appellants filed their objections to the Commissioner report by pleading that the Commissioner instead of showing the encroachment of Halku and Munna has deliberately shown the encroachment of Narayan who is the son of Defendant No.1. The Trial Court by order 22-8-2000 rejected the objections filed by the parties, and granted them liberty that if they so desire, then they may cross examine the commissioner. On 9-11-2000, both the parties expressed that they donot want to lead any further evidence and therefore, the suit was finally heard.
The Trial Court by judgment and decree dated 23-11-2000, dismissed the suit by holding that since, Narayan has been found to have encroached upon the lands of the plaintiff and since, Narayan has not been made a party to the suit, therefore, no relief can be granted. Further it was held that no encroachment by the defendant no.3 Bhaputi was found.
Being aggrieved by the Judgment and Decree passed by the Trial Court, the appellants preferred an appeal which was registered as C.A. No. 6-1A/2001, which too has been dismissed by District Judge, Vidisha by judgment and decree dated 1-11-2001.
Challenging the judgment and decree passed by the Courts below, the present Second Appeal has been filed.
This Court by order dated 26-4-2004 has admitted this Appeal on the following Substantial Questions of Law :
"1. Whether the subordinate Courts have committed an illegality in basing their judgements on the report of the Commission which was invalid on account of having been executed contrary to the rules of survey and the directions contained in the remand order ?
Whether the Courts below are unjustified in considering the alleged theory of possession of Narayan Singh S/o Halku Singh without pleadings and further on the basis of hearsay and unauthorised findings of the Court Commissioner ?
Whether the Courts below have erred in law in dismissing the suit without giving a direction to implead Narayan Singh as a necessary party on account of being in an unauthorised possession of the disputed land ?"
It is submitted by the Counsel for the appellants that the Trial Court by judgment and decree dated 18-12-1992 had held that the defendants no. 1 and 2 have encroached upon 3 bigha of land whereas the defendant no.3 Bhavuti has encroached upon 8 bigha of land. Although the defendants no.1 and 2 challenged the said judgment and decree by filing C.A. No. 3A/1993, but the defendant no.3 Bhavuti did not challenge the judgment and decree.
Thus, the findings of encroachment by defendant no.3 bhavuti and decree against him had attained finality. However, the Appellate Court, set aside the entire judgment and decree and remanded the case back to the Trial Court. Although defendant no.3 Bhavuti had filed his written statement, but he didnot appear as a witness and didnot dispute the averment that he has encroached upon Survey No. 178 area 8 bigha. It is further submitted that the Commissioner also committed material illegality by giving a finding that Narayan Singh has encroached upon 0.230 hectare of land falling survey no. 185,184,183 and 181. Thus, this part of the Commissioner report was clearly beyond his competence, because he was appointed merely to find out the boundaries, but he cannot collect evidence and give his finding as to who has encroached upon the land of the appellants, specifically when Narayan Singh is the son of Halku, Defendant no.1. It is further submitted that the Commissioner had not done spot inspection of Survey No. 178 and therefore, the Commissioner report is completely silent about Survey No. 178. Thus, the Trial Court wrongly held in para 10 of its judgment that according to Commissioner report, there is no encroachment on Survey No. 178. It is further submitted that the Appellate Court, also lost sight of above mentioned facts. Thus, the judgment and decrees passed by the Courts below are liable to be set aside and the suit filed by the appellants be decreed.
None appears for the defendants no. 2 and 3 though served due to refusal.
The defendant no.3/respondent no.3 Bhavuti has not entered appearance at all, although a joint written statement was filed by the defendants no.1 to 3. The case of the appellants is that the defendants no.1 and 2 have encroached upon 3 bigha of land of survey no. 183,184 and 185, whereas defendant no. 3/respondent no.3 Bhavuti has encroached upon survey no. 178 area 8 bigha of land.
The Trial Court by its judgment and decree dated 18-12-1992 had held that defendant no.3, Bhavuti has encraoched upon survey no. 178 area 8 bigha and defendant no.3 bhavuti didnot challenge the judgment and decree which was passed against him. The judgment and decree was challenged by the defendants no.1 and 2 only, but the appellate court, set aside the entire judgment and decree and remanded the case. The Trial Court thereafter appointed a Commissioner who merely submitted his report with regard to Survey No. 185,184,183 and 181 and gave a finding that Narayan has encroached upon the said land, as his land is adjoining to the land of the appellants. The Trial Court has also accepted the said report in its entirety without considering the evidence of the parties. Munna (D.W.1) has stated that the land of Halku is adjoining to the land of the appellants. Sitaram (D.W.2) has also stated that the land of Defendant no.1 Halku is adjoining to the land of the appellants and there is a mud boundary between the fields of appellants and Defendant no.1 Halku. Thus, it is clear that in fact the lands of appellants and the defendants no. 1 and 2 are adjoining to each other, and there is no land of Narayan. Thus, the report given by the Commissioner that the adjoining land belongs to Narayan was factually incorrect, and even otherwise, it was not expected of the Commissioner to give a finding about the fact that who has encroached upon the land. This should have been decided by the Trial Court, because the Commissioner cannot be appointed for collecting evidence and the Trial Court cannot delegate its power of adjudicating the disputes. Thus, it is clear that the defendant no.1 Halku has his land adjoining to the land of the appellants, and since, encroachment of 0.230 hectares was found, therefore, it is held that in fact it was the defendant no.1 Halku and defendant no.2 Munna who have encroached upon the land belonging to the appellants.
However, the Trial Court committed a material illegality by ignoring the fact that the Commissioner's report is completely silent about Survey No. 178 but even then, a perverse finding was given that there is no encroachment on Survey No. 178. Defendant no. 3 Bhuvati, has never appeared before either the Trial Court or First Appellate Court and even before this Court. Even after remand, defendant no. 3 Bhuvati never appeared before the Court and never disputed the pleadings of the plaintiff that defendant no. 3 Bhuvati has encroached upon survey no. 178 area 8 bighas of land. Thus, in absence of any challenge to the pleadings and evidence of the appellants, this Court is of the considered opinion, that the appellants have succeeded in establishing that the defendant no.3 Bhuvati has encroached upon 8 bighas of survey no. 178, belonging to the appellants. So far as the question of mesne profits is concerned, there is no evidence on record in this regard.
Therefore, this appeal is allowed and the judgment and decree dated 1-11-2001 passed by District Judge, Vidisha in Regular Civil Appeal No. 6-A/2001, and judgment and decree passed by Civil Judge Class - I, Kurwai, Distt. Vidisha in Civil Suit No. 20-A/1991 are hereby set aside.
The suit filed by the appellants is partially allowed. Accordingly, it is held that the defendant no. 2 has encroached upon the survey no. 181,183,184 and 185 area 0.203 hectares of land situated in village Layra, Tahsil Kurwai, Distt. Vidisha and similarly, the defendant no.3 has encroached upon survey no. 178 area 8 Bigha of land situated in village Layra, Tahsil Kurwai Distt. Vidisha and therefore, a decree for possession is passed in favor of the appellants and it is held that the appellants are entitled to get the possession of the abovementioned land.
In absence of any evidence, the prayer for mesne profits is hereby rejected.
With aforesaid observations, the Substantial Questions framed by this Court are answered in favor of the appellants, and the appeal is Allowed to the extent mentioned above.
The decree be drawn accordingly.