CHHOTU MAUJU Vs. GURBHAJAN SINGH

JUDGEMENT

(1.) IN a suit for permanent injunction, filed by the petitioner, to restrain the respondent from making constructions forcibly on his land comprised in Khasra No. 2881, a dispute arose as to whether the constructions sought to be raised by the defendant-respondent, were in plaintiff's Khasra No. 2881 or in defendant's own land comprised in Khasra No. 2880. In order to demarcate the boundary line between the two Khasra numbers, the trial Court appointed Shri Sadhu Ram. Saddar Kanungo, as a Local Commissioner on July 8, 1969, Sadhu Ram's report in favour of the defendant, was submitted on August 9, 1969. Plaintiff filed objections against the same on August 27, 1969. On January 16, 1970 when plaintiff's objections against Sadhu Ram's report were pending, the defendant made a statement before the trial Court to the effect that he would confine his constructions to Khasra number 2880 and the Court may get demarcation made with the assistance of the Revenue authorities. Plaintiff agreed to this. Thereupon, the Court fixed January 18, 1970, for inspection of the spot. From the order of the trial Court dated January 19, 1970 it appears that demarcation could not be made on the preceding day as the concerned Revenue official could not be available. Admittedly, the Presiding Officer of the trial Court was not able to visit the spot at any time thereafter. It was in this situation that on February 3, 1970, the trial court appointed Shri Mohinder Singh, Naib Tehsildar as the Commissioner to make the demarcation and to submit his report. Mohinder Singh submitted his report dated July 9, 1970 in favour of the plaintiff and stated that the defendant was trying to make constructions in plaintiff's land comprised in Khasra No. 2881. In the course of the order recorded by the trial Court on October 8, 1970, it was held that Mohinder Singh had never been appointed as a Commissioner by the Court. That decision was set aside by this Court (Pandit, J.) on March 2, 1971, while allowing plaintiff's Civil Revision No. 1133 of 1970 against that order. Plaintiff's objections against Sadhu Ram's report were ultimately dismissed by the trial court's order dated May 15, 1971. Plaintiff has come up in revision against that order and wants me to hold that in view of the appointment of Mohinder Singh as a Commissioner for local investigation, after the receipt of Sadhu Ram's report, the first report should be deemed to have been wiped out and should not be considered as a commissioner's report while deciding the main case. The petitioner appears to be under some misapprehension in respect of the legal position. The only provision of law under which Sadhu Ram as well as Mohinder Singh could have been appointed as Commissioner is O. XXVI, R. 9, of the Civil P. C. Rule 10 (1) of Order XXVI provides that the Commissioner, appointed under Rule 9, has to return the evidence recorded by him together with his report in writing signed by him to the court. Sub-rule (2) of R. 10 of O. XXVI inter alia makes it clear that the report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record. Sub-rule (3) authorises the Court to direct such further inquiry to be made as it thinks fit in case the Court is, for any reason, dissatisfied with the proceedings of the Commissioner. No provision of the Code, however, provides for the Commissioner's report being taken off the record or not being considered as evidence in any circumstances. The value to be attached to the report is, however, a different matter. It is obvious that the Court was either not satisfied with the proceedings of the first Commission or merely because of the statements made by the parties on January 16, 1970, the second Commission was ultimately issued. Whichever of the two alternatives might have resulted in the appointment of the second Commissioner, the fact remains that the report of sadhu Ram as well as the evidence taken by him has to be read as evidence in the suit. Similarly, the report of Mohinder Singh must also be read as evidence in the suit along with evidence recorded by him. In the circumstances of this case, it is obvious that the defendant will rely on Sadhu Ram's report and the plaintiff on mohinder Singh's report. It will be for the trial Court to read the evidence recorded by the two Commissioners as well as the reports given by them and the other evidence produced by the parties in order to adjudicate upon the matter in dispute.

(2.) MR Harbans Lal has relied on the judgment of a learned Single Judge of the andhra Pradesh High Court in Samudrala Seetaramacharyulu v. Samudrala ranganayakamma, AIR 1958 Andh Pra 304, wherein it was held that two separate commissions should not be issued to deal with one and the same subject and to treat the reports of both Commissioners as evidence in the case. The learned judge of the Andhra Pradesh High Court has undoubtedly laid down a salutary principle of law but if, rightly or wrongly, more than one commission are issued for legal investigation in respect of the same matter, the Court has no jurisdiction to exclude from the evidence in the case any one of the reports submitted by the commissioners unless all the parties to the suit want the particular evidence to be excluded. The Andhra Pradesh High Court has not held that if more than one commission are issued for the same purpose any one of the reports of the Commissioners should be excluded from evidence.

(3.) MR. Diali Ram Puri, learned counsel for the respondent has on the other hand brought to my notice the Division Bench judgment of the Patna High Court in Shibcharan Sahu v. Sarda Prasad, AIR 1937 Pat 670. In that case, it was held that if the Court is dissatisfied with the report of a Commissioner it can issue another commission, but still the report of the first Commissioner cannot be wiped out of the record. This is clear from a collective reading of sub-rules (2) and (3) of Rule 10 of Order XXVI. I am in respectful agreement with the view expressed by the division Bench of the Patna High Court in Shib Charan Sahu's case. The prayer of the plaintiff-petitioner to exclude from consideration the report of Sadhu Ram cannot, therefore, be granted. Mr Harbans Lal then submits that Sadhu Ram's report may be treated as only evidence on which the defendant may rely and may not be treated as the Commissioner's report. I do not know what difference this would make. The report of each Commissioner under Order XXVI, Rules 9 and 10 of the Code is nothing more than evidence on which either of the parties may or may not rely or which may or may not find favour with the Court wholly or partially. Since under the mandatory provisions of Order XXVI, Rule 10 of the code, the report of Sadhu Ram cannot be excluded from consideration as a piece of evidence. I cannot interfere with the order of the trial Court and dismiss this revision petition with the observation that the value to be attached to Sadhu ram's report as well as to Mohinder Singh's report as pieces of evidence will have to be judged by the trial Court in the course of its decision on the main issue in the same manner as the other evidence on the record of the case has to be appraised. I leave the parties to bear their own costs.