BUTA SINGH Vs. BHAN SINGH

JUDGEMENT

(1.) BUTA Singh, plaintiff, filed a suit for permanent injunction restraining the defendant from interfering in the possession of the former on the land in dispute or cutting or removing any tree standing on the land measuring 51 K 13 M as detailed in the plaint. During the pendency of the trial. Local Commissioner was appointed who submitted his report. Later, objections were invited and the plaintiff filed the objections to the report that the Local Commissioner had used excessive power and that he did not, adhere to the instructions issued by the Financial Commissioner from time to time. No pucca points were fixed and no, measurements with Zarib were taken. Detailed reply was filed to the objections raised by the defendant and the trial court, after hearing the counsel for the parties, framed the following issues : " 1. Whether the report of the Local Commissioner is liable to be set aside on the basis of the objection filed by the plaintiff ? OPO 2 Relief" After recording the evidence of the parties, the trial court came to the conclusion that no fault can be found with the report of the local commissioner and that the same was perfectly valid and in order. It is against this order of the trial court that the present revision petition has been filed 2 Mr. Cueeria, appearing for the petitioner/plaintiff has argued that there is no provision of law for inviting any objection to the report of the Local Commissioner appointed under order 26 R. 9, Code of Civil Procedure. He further argued that there was ho provision for framing issues regarding the validity of the report of the Local Commissioner or for permitting the parties to lead evidence thereon. The Court should have considered the objections, if any, filed by the parties against the report of the Local Commissioner at the time of the final decision of the case This argument has been based by learned counsel on a decision of the Division Bench of this Court reported as Balbir Dewan v. Naveen Chander, (1989-1) 95 P. L. R. 677 So far as this contention of Mr. Cuccria is concerned it bears no exception being the dictum laid down by the Division Bench of this Court. Prior to this judgment, there was a conflict of various Single Bench decisions of this Court on the point which has been finally resolved by the abovesaid Division Bench judgment. The Division Bench has taken this view that there is no provision for framing issues and permitting the parties to lead evidence regarding the validity of the report of the Local Commissioner If there are any objections, the Court may consider the same and if for any reason the Court is dis-satisfied with the proceedings of the Commissioner it may direct such further enquiry to be made as it thinks fit but neither of the parties is entitled to claim any issue with respect to the report The argument of Mr. Cuccria is that in the present case, the trial court erred in law in framing an issus regarding the validity of the report of the Local Commissioner and in permitting the parties of lead their evidence. In the present case, it seems that the defendant was satisfied with the report and it is the plaintiff/petitioner alone who filed his objections and peruaps chimed the issues too and now the plaintiff wants to take an advantage of the Division Bench judgment (supra), as the trial court has given a finding regarding the validity of the report of the Local Commissioner in favour of the defendant /respondent and has held that the report of the Local Commissioner was valid and in order. 3. Be that as it may, in view of the Division Bench judgment of this Court (supra), I direct the trial court to fake into the account the report of the Local Commissioner along with the objections filed by the petitioner against the said report at the time of the final decision of the case. It is clarified that any finding recorded by the trial court regarding the report of the Local commissioner in the impugned order shall tot be binding on either of the parties and the trial court shall give an independent finding regarding the report of the Local Commissioner at the time of the final hearing. 4. The revision petition is accordingly dismissed.