NAGARAM Vs. PRABHU

JUDGEMENT

(1.) THIS appeal is against the judgment and decree dated 7.11.97 passed by Additional District Judge to the Court of District Judge, Sheopur Kalan, District Morena in F.A. No. 27 -A/94 confirming the judgment and decree passed by Civil Judge, Class -I, in Civil Suit No. 1 -A/89 decided on 12.11.94.

(2.) BRIEFLY stated the facts are that the plaintiff/appellant filed a suit for injunction in respect of agricultural land survey No. 404, area 19 Bighas 12 Biswas situated at village Banwada. The plaintiff contended that he is owner of the land survey No. 404, area 19 Bighas 12 Biswas and is in possession. The plaintiff contended that before chakbandi he had 22 Bighas 14 Biswas land and out of which 3 Bighas land was given to different persons in chakbandi and in exchange 1 Bigha 18 Biswas of land was given to him. The land which was given to plaintiff -appellant by the State in chakbandi was Padat Kabil Kasht land which was adjacent to the land of the plaintiff. The plaintiff contended that after exchange, land 1 Bigha 18 Biswas was mutated in the name of plaintiff and demarcation was done. The plaintiff contended that the respondents are creating hurdles in agricultural activities and restraining the plaintiff -appellant from doing agricultural work on the land. The respondents/defendants denied the title of the plaintiff over the disputed land. The trial Court dismissed the suit. Plaintiff -appellant preferred first appeal which was dismissed. Counsel for the appellant contended that in this case demarcation was done on 19.11.1974 and Panchanama is Ex. P -3. Its receipt is Ex. P -4. Ex. P -5 in order -sheet. The trial Court has considered the same in para 10 of the judgment and has rejected the demarcation on the ground that the plaintiff himself admitted in para 8 of his cross -examination that the defendant was not given notice of this and he was not present there at the time of demarcation.

(3.) AFTER hearing the counsel for the parties and perusal of the record, in the opinion of this Court, the lower appellate Court committed grave error in holding that the report of the commissioner cannot be gone into because it has been appointed after the evidence is recorded. The second substantial question of law framed on 21.4.1998 is answered in favour of appellant to the extent that the lower appellate Court did not consider the commissioner's report. Counsel for parties submitted that in view of this, it is necessary to go into other substantial questions which are regarding misreading of evidence etc.