MOHAMED VALIBHAI Vs. IBRAHIM AHMED DOLA

JUDGEMENT

(1.) PRESENT is an appeal by dissatisfied plaintiffs, who succeeded before the trial court, but the decree was dislodged in the appeal.

(2.) PLAINTIFF , Mohammed Vali and another filed the suit under Order I Rule 8 read with section 91 of the Code of Civil Procedure, 1908. It was submitted by them that the defendants had made trespass over public land by raising certain construction and as the width of the road was 15 feet, which because of the encroachment made by the defendants was reduced to 11 feet, the court should direct by issuing a mandatory injunction for removal of the encroachment. Learned trial court issued notice to the defendants who submitted before the trial court that they had not made any encroachment. After recording the evidence and hearing the parties, learned trial court decreed the suit, however, in the appeal filed by the defendants, the appellate court held that from the Commissioner's report, it was apparent and clear that width of the road was different at different places ranging between 11 feet and 9 inches to 15 feet. It also held that the plaintiffs failed to prove that the width of the road at all possible places was 15 feet and the defendants had made encroachment on the public road. The appellate court accordingly allowed the appeal and dismissed the suit. The plaintiffs are before this Court challenging the correctness, validity and propriety of the said judgment and decree. The appeal has been admitted for hearing the parties on the following substantial questions of law: -

(3.) LEARNED counsel for the appellants submits that the lower appellate court had not taken into consideration the Sanads of city survey nos.63 and 61 and the maps prepared by the Court Commissioner at exhs. 72, 73 and 57. In the opinion of this Court, the argument is misconceived. From the judgment of the first appellate court, it would clearly appear that it had taken into consideration all relevant material including the map prepared by the Commissioner appointed by the court. A Commissioner cannot decide a disputed question if he is required to go for spot inspection. Order XXVI Rule 9 relates to issuance of commissions to make local investigations. When the Commissioner is authorized to make investigations, then he only has to make local investigations and is not required to make his comments or give his opinion. In the present case, the report submitted by the Commissioner could be used to the limited extent of ascertaining that what was the position of the spot and not anything beyond that. Sanads do not say that adjoining the constructed area government property stands. If there is nothing on the records to show or suggest that the road at all places was 15 feet wide, then no finding can be recorded in favour of the plaintiff on the basis of the Commissioner's report.