RAJA RAM Vs. RAM SARUP

JUDGEMENT

(1.) Property bearing Nos. C-267 and C-268 was allotted to the respondent and the appellant respectively by the Rehabilitation Department. Document Exhibit P.2 shows that the respondent was allotted 549 Square ft. Document Exhibit P.3 shows that the appellant was granted an area of 540 Square ft. The dispute has arisen about the ownership of the staircase, and the deohri shown as AJLK and LKGH respectively in the plan Mark 'A'. Shri Babu Ram Gupta, Advocate, was appointed as Local Commissioner by the learned trial Court to make the measurements and to report. The defendant respondent preferred objections against the report of the said Commissioner but did not produce him as a witness in Court. The learned trial Court non-suited the appellant without discussing the report submitted by the local Commissioner. The learned lower appellate Court did not condescend to look into the report on the ground that the same had not been proved in accordance with law.

(2.) I am purposely not making any observation about the merits of the case. It suffices to mention that the report of the local commissioner appointed by a Court has to be read in evidence without its being formally proved. Any party without takes an exception against the contents of such a report is under an obligation to produce the commissioner in Court and to establish that the objections raised by it are well-founded. Unless and until such a course is adopted due weight has to be given to the report submitted by a commissioner. Since the learned lower appellate Court has ruled this report out of consideration for wholly extraneous reasons and since according to Mr. N.C. Jain, learned counsel for the respondent, some important evidence which goes to favour the case of the respondent has also been overlooked by him, I allow this appeal, set aside the judgment rendered by the learned lower appellate Court and remand the case to it for fresh decision in accordance with law. I may also make it clear that if the respondent wishes to produce the local commissioner as a witness the learned lower appellate Court should allow him to do so instead of further remanding the case. Since it is an old appeal it should be disposed of as expeditiously as possible. The parties through their counsel are directed to appear before the learned lower appellate Court on January 16, 1979.