MAHA SINGH Vs. RAM NARAIN

JUDGEMENT

(1.) The revision petition is directed against the order of the Executing Court dated January 5,1976, by which he said court dismissed the application filed by the decree-holder with the allegation that the responders had disobeyed the decree. A perusal of the impugned order passed by the lower Court shows that it has not applied it mind to the crucial piece of evidence, namely, the report of the Local Commissioner who was appointed to inspect the spot in order to determine whether the judgment-debtors had committed an encroachment on the disputed property or not. It is not disputed that the Local Commissioner submitted the report. Exhibit LC/1 and also filed a plan showing the quantum of encroachment. The Lower Court has excluded this evidence by merely observing that the site plan prepared by the Local Commissioner was 'funny' as the same appeared to have been draw in a reverse direction. It is hardly a ground for rejecting the plan. If the lower Court was not satisfied with the plan produced by the Local Commissioner to prepare a fresh plan and then examine the matter in the light of the new Plan and the report of the Local Commissioner. In this situation the petitioner are quite justified to urge that the non-consideration of the report of the Local Commissioner has prejudiced their case.

(2.) In view of the foregoing reasons, the revision petition is accepted and the impugned order passed by the lower Court is set aside. The case is sent back to the lower Court with the direction that it shall reconsider the matter including.the report of the Local Commissioner and then come to a fresh finding on the disputed point.

(3.) The parties, through their counsel have been directed to appear before the lower Court on November 6, 1980.