HIGH COURT OF CHHATTISGARH AT BILASPUR

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Single Bench: Hon'ble Shri Justice P. Sam Koshy
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Second Appeal No.178 of 2012

Appellant Saroj Bai

Defendant No.1
VERSUS

Respondents Ramdas Lahre and others

Present: Shri Sanjay S. Agrawal, counsel for the appellant.

Shri R.N. Jha, counsel for respondent No.1.
None for respondent No.2 though served.
Smt M. Asha, PL for State/respondent No.3.

Oral Order
(05.12.2014)

By way of the instant appeal, the appellant has challenged the judgment and decree
dated 28.4.12 passed by the Additional District Judge, Mungeli in Civil Appeal No.7-A/2011
whereby the 1st appellate court has confirmed and affirmed the judgment and decree dated
6.11.2009 by the Civil Judge, Class-1, Mungeli in Civil Suit No.53-A/2006.

2. The facts leading to the filing of the instant Second Appeal are that plaintiffs had
instituted a suit claiming declaration of title, injunction in the mandatory form seeking
removal of the encroachment which is alleged to have been created by the defendant in
the suit property bearing Khasra No.462/1 measuring 8.17 acres at village Dharampura of
which, it is alleged that the defendants, had encroached upon some portion of the said
land and made certain construction in the said suit land as an encroachment and
therefore, had sought for the removal of same. It is a case where during the course of the
proceedings before the trial court, vide its order dated 10.3.2008, in the light of the
provisions of Order 26 Rule 9 CPC, the trial court ordered for a special inspection of the
disputed portion of land and in the course, vide order dated 10.3.08, the court below had
specifically directed that Tehsildar, Mungeli is appointed as Commissioner and it was
further directed that the Tehsildar himself shall go and conduct the inspection of the
disputed property and submit a report to the court on the basis of which, the further
proceedings would take place. However, subsequently, it was learnt that the Tehsildar in
spite of personally executing the order of the court as a Commissioner, as per the order
dated 10.3.08, in turn, had appointed a Committee consisting of 3 Revenue Inspectors
namely Nasir Khan, Mulchand Dubey and Ram Bhajan Singh and directed the said
Committee to get the measurement done and to submit the report to him and the 3
Inspectors, as per the order of the Tehsildar, conducted the measurement and submitted a
report to the Tehsildar, who in turn, made a Commissioner's report and submitted the same
before the Tribunal. On the basis of the said report of the Commissioner, the trial court
proceeded further and decided the suit in favour of the plaintiffs holding that the
defendants have in fact made certain encroachments on the suit property and accordingly,
allowing the suit, judgment and decree was passed on 6.11.2009.

3. This judgment dated 6.11.2009 was put to challenge by way of an appeal i.e. which
was registered as Civil Appeal No.7-A/2011 before the Additional District Juddge, Mungeli.

4. The 1st appellate court also, after taking into consideration, the findings arrived at by
the trial court, reached to the conclusion that there was no error of law committed by the
trial court in the course of deciding the suit on the basis of the Commissioner's report
which was submitted before the trial court and confirmed and affirmed the judgment and
decree of the trial court rejecting the appeal vide its judgment dated 28.4.2012.

5. It is this judgment dated 28.4.2012 which is subjected to challenge by way of the

instant Second Appeal.

6. The Second Appeal was admitted for hearing on 31.1.2013 and this Court had
framed the substantial question of law which is as under:-

“Whether both courts below have committed

illegality by accepting report of the Commissioner in evidece not
appointed by the Court or not permitted by the Court?”

7. Counsel for the appellant apprising the Court on the substantial question of law,
took the Court firstly through the order dated 10.3.2008 drawing the attention of the Court
towards the direction of the court in appointing the Tehsildar as a Commissioner and that
the Tehsildar shall inspect the spot and carry out the measurement and submit a report of
the disputed suit property so as to ascertain the factual position of the case in a proper
manner. He has referred the the evidence of witness i.e. Mulchand Dubey, Revenue
Inspector, was was one of the persons who had conducted the measurement and who was
examined before the court below at the instance of the court so as to prove the
Commissioner's report which was submitted by the Tehsildar. Taking the court through the
deposition of the said Mulchand Dubey, counsel for the appellant has stated that from the
deposition of Mulchand Dubey, it is evidently clear that the Tahsildar has not complied with
the order of the trial court dated 10.3.2008 in its correct perspective wherein he was
specifically appointed as a Commissioner under Order 26 Rule 9 CPC and that it was
further specifically directed that the Tehsildar himself shall visit the spot and conduct
inspection and thereafter submit a spot inspection report after conducting the same. The
relevant portion of the order passed by the trial court appointing the Tehsildar as
Commissioner is reproduced for ready reference as under:-

“rglhynkj eqaxsyh dks izdj.k esa dfe'uj fu;qDr fd;k tkrk gSA
mudks mDr laca/k esa Kkiu tkjh gks fd og oknxzLr Hkwfe ds laca/k esa o
LFky fujh{k.k dj ekSds dh fLFkfr ds laca/k esa viuk izfrosnu izLrqr djsaA”

8. From the plain reading of the order passed by the trial court dated 10.3.08, it
reflects that the there was a specific order appointing the Commissioner for inspection and
that he was further directed to personally conduct spot inspection and submit a report of
the same. But the deposition of Mulchand Dubey clearly shows that the Tehsildar in stead
of conducting the spot inspection himself, had constituted a Committee consisting of 3
Revenue Inspectors namely Nasir Khan, Mulchand Dubey and Ram Bhajan Singh for
submitting a report after visiting the spot and further the evidence of Mulchand Dubey also
reflects that as per the order of the Tahsildar, 3 Revenue Inspectors had inspected the spot
and conducted the spot inspection and thereafter they have submitted a report to the
Tehsildar who in turn, prepared another report and submitted the same to the court
towards compliance of the court order dated 10.3.08.

9. This act on the part of the Tehsildar in not personally complying the order of the
Court dated 10.3.2008 by conducting a spot inspection personally and instead, getting the
spot inspection done through an agency, according to the counsel for the appellant is not
sustainable particularly when the Tehsildar was appointed invoking the powers of the court
under Order 26 Rule 9 CPC.

10. Counsel for the appellant, in support of his contentions, insisted upon the fact that
the report of the Commissioner as submitted before the trial court cannot be accepted to
be proper and relies upon the judgment of the Division Bench of this High Court on the
original side wherein the Division Bench of this Court while deciding the Civil Suit No.1-
A/08 in the matter of South Eastern Coalfields Limited vs. State of Chhattisgarh and
another. According to counsel for the appellant, the Division Bench of this Court, has in
very specific terms, under similar set of facts, held in its judgment dated 5.3.10 that once
when the Court exercising the power under Order 26 Rule 9 CPC has appointed a
Commissioner, then the said authority appointed as a Commissioner is bound to act as the
representative of the Court and conduct personally the spot inspection of the disputed land
so as to give the correct factual position before the court by way of the Commissioner's
report and on the basis of the judgment of the Division Bench of this Court, counsel for the
appellant prays that the two orders passed by the two courts below in relying upon
Commissioner's report cannot be accepted and the findings arrived at, deserves to be set
aside and the matter has to be remitted back for fresh adjudication.

11. Counsel for respondent No.1/plaintiff submits that it is a case where the report
perhaps shows that the Tehsildar also, was present while the inspection was being
conducted and the Committee of the 3 Revenue Inspectors was constituted only for
assisting the Tehsildar for the purpose of conducting spot inspection and in the statement
of the Commissioner's report, he further makes a statement that even otherwise, it is not a
case where the counsel for the appellant is doubting the integrity of the Revenue
Inspectors who have in fact prepared the report, rather described the same to be only a
material irregularity where instead of the Tehsildar himself conducting the spot inspection,
he has got it done by the team of Revenue Inspectors working under him which would
rather show the fairness on the part of the Tehsildar in getting the work done as per the
directions of the Court. He further submits that it is also a case where no prejudice has
been caused only on account of the fact that instead of the Tehsildar personally conducting
the spot inspection, has got it done by the Committee of Officers posted under him and for
this reason also, the said Commissioner's report cannot be ignored. Thus, the two courts
below have rightly accepted the same in taking note of the said Commissioner's report, it
has firstly decided the suit in favour of the plaintiffs and the 1 st appellate court also has
affirmed the judgment and therefore, prays for rejection of the Second Appeal by
answering the substantial question of law in negative.

12. Considering the rival contentions put forth by the counsel appearing on either side
and on perusal of the record, particularly the deposition of Mulchand Dubey, the witness
who has been examined to prove the Commissioner's report on the basis of the which the
two courts below have decided the suit, it is explicit from the statement of Mulchand Dubey
that the spot inspection was not carried upon by the Tehsildar himself but it was the 3
Revenue Inspectors' Committee which was constituted by the Tehsildar who had
conducted the spot inspection.

13. From the deposition of Mulchand Dubey, it is also explicit that the Committee
constituted by the Tehsildar, had submitted a report to the Tehsildar and thereafter the
Tehsildar in turn, had prepared the report and submitted the same before the court as the
Commissioner's report showing it to be a case where the spot inspection has been done
by the Tehsildar himself.

14. Thus, from the deposition of the said Mulchand Dubey itself, it is evidently clear
that the Tehsildar has not discharged his duties as assigned to him vide order dated
10.3.2008 and that the report in the name of Tehsildar submitted before the court was not
in fact the report of the Tehsildar but was a report of a Committee constituted by the
Tehsildar and as such the report of the 3 Revenue Inspectors who were not appointed by
the court as Commissioners cannot be accepted as a Commissioner's report. Thus, the
reliance on the said Commissioner's report by the two courts below in deciding the suit
appears to be erroneous.

15. If we take into consideration the judgment of the Division Bench of this Court in
Civil Suit No.1A-/08 dated 5.3.10, the Division Bench has, dealing with similar set of facts,
held as under:-

“While dealing with same question in the matter of Onkar

Prasad & Anr. v. Manju Devi & Ors, this Court has held that
Tehsildar appointed as Commissioner for local investigation
cannot entrust local investigation to Revenue Inspector
without permission of the Court.”

xxxx xxxxxx xxxx

“the Court has issued Commission for local

inspection, but the Commissioner so appointed has not
investigated/inspected/demarcated the land and one Commissioner out
the two has constituted a team for execution of Commission
and delegated the work of Commission without permission of
the Court. The Commission report submitted by the officers to whom
the work has been delegated by one of the Commissioners
without permission is without jurisdiction and is of no use.
Therefore, the Commission report, in the present case, ifsof no help
for proving issue No.1.”

16. In the light of the judgment of the Division Bench of this Court and also taking into
consideration the deposition of Mulchand Dubey, this Court is of the view that the finding of
the two courts below, relying upon the Commissioner's report is not proper, legal and
justified and in fact the Commissioner's report so relied upon by the two courts below
cannot be said to be a Commissioner's report ad it was in fact the report of the third party
agency not appointed by the court which was furnished before the court through the
Commissioner and which cannot be in consonance to the order passed by the trial court
dated 10.3.2008.

17. For the foregoing reasons, this Court is of the opinion that the finding of the two
courts below cannot be sustained and accordingly, the substantial question of law framed
by this Court is answered in the affirmative holding that there was a substantial illegality on
the part of the two courts below in accepting the Commissioner's report.

18. As a consequence, the Second appeal is allowed and the two orders passed by
the court below are set aside and the matter is remanded back to the trial court for fresh
adjudication upon the issue raised by the plaintiff. It is further directed that the court below
shall direct the Tehsildar concerned to personally conduct the spot inspection and to
submit a report so as to reach to a proper conclusion.

19. Needless to mention that the Tehsildar upon being appointed as the
Commissioner, can take the assistance of the necessary persons required for conducting
the spot inspection. It is further directed that both the parties shall cooperate with the
proceedings of the trial court and also cooperate during the course of the spot inspection
to be conducted by the Commissioner.

20. With the consent of the counsel for the parties, the parties are directed to appear
before the trial court on 19.1.2015. Registry is directed to ensure that the record is sent
back to the concerned court at the earliest.

21. In view of above, the instant Second Appeal is allowed.

JUDGE
 Head Note

Commissioner appointed U/O 26 R-9 CPC cannot get the spot inspection carried out by
a third person and any such report would not be proper and legally acceptable