LAXMAVVA APPAIAH JANGALI Vs. RAMACHANDRA

JUDGEMENT

(1.) i have heard the learned counsel for the appellants at length. No substantial question of law as such has been formulated for consideration by this court.

(2.) no doubt, the trial court on appreciating the evidence failed to rely upon the report of the commissioner to reach the conclusion that the plaintiff had not proved the encroachment and as such refused to grant him both simple as well as mandatory injunctions prayed for against the defendants. But, the appellate court, on the appeal preferred by the plaintiff, has accepted the commissioner's report to arrive at the conclusion that the katte built by the defendants is on the land belonging to the plaintiff which the defendants have encroached upon.

(3.) many arguments have been advanced in this court in regard to the inconsistency of the commissioner's report and the sketch prepared by him. The fact is, a commissioner's report forms part of the court's records and it can be relied upon by the court to arrive at a conclusion. The only reason given by the trial court to reject the commissioner's report is, it was not done by an expert surveyor. The absurdity of that reasoning stands blatently exposed by the fact that when a surveyor was required to be appointed as commissioner earlier, the court rejected the application of the plaintiff but on a subsequent application for appointment of a commissioner, it appointed a lawyer as commissioner. The lawyer has taken memo of instructions from both the sides and after notice to them and in their presence prepared a sketch and the measurements given by the commissioner clearly demonstrate that the katte has been built by the defendant in the area which is encroached upon in the site of the plaintiffs. If there was any vagueness in the report of the commissioner, the defendant had the liberty to call him to the witness box and cross-examine him. Not having done so, it is not now open to the defendant to impeach the sketch or the report of the commissioner. Therefore, as is the normal practice, the findings recorded by the appellate court shall prevail over the findings of the trial court.