ONKAR PRASAD Vs. MANJU DEVI

JUDGEMENT

(1.) THIS writ petition is directed against the order dated 10th December, 1998 passed in Civil Suit No. 26-A/93 by learned 4th Civil Judge, Class-1, Bilaspur whereby objection against the report submitted by the Commissioner appointed under Order 26 Rule 9 of the CPC has been rejected. The petitioners had earlier filed Civil Revision No. 24/99 against the above order. In the said Civil Revision, proceedings in Civil Suit No. 26-A/93 were stayed vide order dated 11.01.1999 (Annexure-P/10), however, revision was dismissed on 30th June, 2005 with liberty to have recourse to other legal remedies and accordingly, the instant petition has been filed.

(2.) SINCE there was dispute with respect to identity of the disputed land between the parties, the trial Court appointed Tehsildar, Bilaspur as Commissioner for local investigation under Order 26 Rule 9 of the CPC (Annexure-P/3) and directed the Collector to submit its report (Annexure-P/4).

(3.) I have heard learned counsel for the parties. Tehsildar was appointed as Commissioner for local investigation by learned trial Court. The order of appointment of the Commissioner was forwarded to the Collector as per Chhattisgarh Commissions For Local Investigation Rules, 1962 (for short 'the Rules, 1962), however, the revenue inspector has conducted local investigation and submitted his report to the Tehsildar and the same has also been filed in the Court. Order 26 Rule 10(2) provides for report and depositions to be evidence in suit and examination of Commissioner in person, which is reproduced as under: 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 the 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. Part-II of the Rules, 1962, framed in exercise of powers conferred by proviso to Rule 9 Order 26 of the First Schedule to the Code of Civil Procedure, 1908, deals with revenue officer to whom commission may be issued. Rule 4 & 5 of the above rules reads thus :