G H RAM LAL & ORS. versus SALIG RAM & ORS.

Citation: [2019] 1 S.C.R. 1064 · Decided: 04-02-2019 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Appeal(s) allowed

Judgment (excerpt)

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1064
SUPREME COURT REPORTS
[2019] 1 S.C.R.
RAM LAL & ORS.
v.
SALIG RAM & ORS.
(Civil Appeal No. 8285 of 2009)
FEBRUARY 04, 2019
[ABHAY MANOHAR SAPRE AND
DINESH MAHESHWARI, JJ.]
Code of Civil Procedure, 1908:
Or.XXVI, r.10(3) – Suit for prohibitory injunction – Dismissed
by trial court – First Appellate Court framed additional issues as to
whether the defendants had encroached over the land in question
and to what extent – Remitted the additional issue to trial court for
its finding by appointing Local Commissioner – Trial court after
perusing the report of the Local Commissioner returned its finding
on the additional issue in favour of plaintiffs – Thereafter First
Appellate Court allowed the appeal and decreed the suit – In second
appeal, High Court dismissed the suit on the ground that report of
the Local Commissioner could not be relied upon as the report was
suffering from lack of compliance of applicable instructions and
there was no other evidence proving encroachment by defendants
– On appeal, held: As per Or.XXVI, r. 10(3) where the Court is
dissatisfied with the proceedings of a Local Commissioner, it can
direct further inquiry – Therefore, proper course for the High Court
was either to issue a fresh Commission or to remand the matter for
reconsideration – Entire suit could not have been dismissed for an
irregularity – High Court has also overlooked other evidence on
record – For just and effectual determination of all the questions in
issue, proper course is to issue a fresh Commission and for direction
to the trial court to decide the entire suit afresh.
Allowing the appeal, the Court
HELD:  1. The First Appellate Court referred not only to
the Commissioner’s report but also to the oral and documentary
evidence adduced by the parties. The First Appellate Court also
observed that the Commissioner had made an exhaustive report
after carrying out demarcation properly and there was nothing
[2019] 1 S.C.R. 1064
1064
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on record to show that the report could not be accepted. The
First Appellate Court, though dealt with the matter in sufficient
detail but appear to have not taken into consideration the method
and procedure for carrying out such demarcation, with reference
to the applicable instructions and guidelines, as issued by the
Financial Commissioner under Section 100 of the Punjab Land
Revenue Act, 1887,  corresponding to Section 106 of the Himachal
Pradesh Land Revenue Act, 1953. [Para 14][1071-E-F]
2. The procedure in relation to such Commission for local
investigation is specified in Rules 9 and 10 of Order XXVI  of
CPC. As per clause (3) of Rule 10 of Order XXVI, where the
Court is disssatisfied with the proceedings of such a Local
Commissioner, it could direct such further inquiry to be made as
considered fit. [Para 16] [1072-C]
3. If the report of the Local Commissioner was suffering
from an irregularity, the proper course for the High Court was
either to issue a fresh Commission or to remand the matter for
reconsideration, but the entire suit could not have been dismissed
for any irregularity on the part of Local Commissioner. Hence,
the approach of High Court, where after rejecting the
Commissioner’s report, the High Court straightaway proceeded
to dismiss the suit cannot be approved. The plaintiffs have been
asserting encroachment by the defendants on their land and have
also adduced oral and documentary evidence in that regard. The
First Appellate Court had allowed the appeal and decreed the
suit filed by the plaintiff not only with reference to the
Commissioner’s report but also with reference to the other
evidence of the parties. The High Court appears to have
overlooked the other evidence on record. [Para 17][1072-F-H;
1073-A-B]
4. For just and effectual determination of all the questions
involved in the matter, the proper course is of issuing a fresh
Commission and for direction to the Trial Court to decide the
entire suit afresh on the issues as originally framed as also on
the additional issues after taking the report of the Local
Commissioner afresh and affording an opportunity to the parties
to submit their objections, if any. [Para 18][1073-C]
RAM LAL v. SALIG RAM
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SUPREME COURT REPORTS
[2019] 1 S.C.R.
State of H.P. v. Laxmi Nand and Others 1992 (2) SLC
307– referred to.
Case Law Reference
1992 (2) SLC 307
referred to
Para 8
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8285
of 2009.
From the Judgment and Order dated 06.11.2007 of 

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