PHOOL SINGH Vs. ATMA RAM

JUDGEMENT

(1.) THIS is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity 'the Code') challenging concurrent findings of fact recorded by both the Courts below holding that the claim made by the plaintiff-appellants in the suit for recovery of possession of 7 marlas of land comprised in Khasra No. 199 was misplaced because according to the demarcation report prepared by the Local Commissioner namely Naib Tehsildar on 2.4.1981 Ex. C.1 it has been proved that defendant-respondents did not encroach upon the afore-mentioned land. It was further held that the suit land does not constitute part of Khasra No. 199. It is appropriate to mention that the trial Court has also held on the basis of the report dated 15.5.1977 Ex. P.1 that defendant-respondents did not encroach upon the land comprised in Khasra No. 199 or in other words, the suit land did not form part of the afore-mentioned khasra number. However, on appeal, the Ld. Addl. District Judge appointed Naib Tehsildar as Local Commissioner who submitted his report Ex. C.1 dated 2.4.1981 pointed out that the suit land did not constitute part of Khasra No. 199 and the defendant-respondents had not encroached on it.

(2.) HOWEVER , on 14.5.1982, the Ld. Addl. District Judge set aside the findings recorded by the trial Court and ordered remand of the case for de novo trial by the trial Court. It is pertinent to mention that by that time report dated 2.4.1981 Ex. C1 submitted by the Naib Tehsildar had already come on record. In pursuance to the remand order passed by the Ld. Addl. District Judge, the trial Court appointed the Local Commissioner who had submitted the report on 11.7.1982. In the meanwhile, defendant-respondents filed SAO No. 38 of 1982 before this Court challenging the order of remand dated 14.5.1982 passed by the Addl. District Judge on the ground that no remand could have been ordered by directing de novo trial. The aforementioned contention of the defendant- respondents was upheld by this Court by passing the following order :

(3.) SHRI Akshay Bhan, learned counsel for the appellant has argued that the directions issued by this Court were that the District Judge could have obtained the report of the Local Commissioner and decided the appeal in the light of the report. According to the learned counsel, the report submitted by the Local Commissioner on 11.7.1982 was already on record and the order of the High Court has to be construed to mean that the Addl. District Judge was under a legal obligation to consider the report of the Local Commissioner dated 11.7.1982 as it was the direction by this Court. Learned counsel further argued that the Ld. Addl. District Judge while dismissing the appeal of the plaintiff-appellants has committed a grave error by referring to the report Ex. C1 dated 2.4.1981 and completely ignored the report dated 11.7.1982 which has been obtained by the trial Court after remand. The learned counsel has made a reference to the observations of the Addl. District Judge in paras 19, 20 and 21 and argued that discarding the report on 11.7.1982 in favour of the plaintiff-appellants is absolutely unsustainable in law and infact is against the letter and spirit of the order passed by this Court on dated 7.10.1982.