Delhi District Court
Sh. Prem Chand Jain vs Sh. Sri Ram S/O Sh. Sita Ram (Now ... on 29 August, 2011
Prem Chand Jain & Ors. v. & Sri Ram & Ors.
IN THE COURT OF SH. SANJAY SHARMA, JSCC-CUM-
ASCJ-CUM-GUARDIAN JUDGE (WEST): DELHI
Suit No. 2421/08 (Old No.191/87)
Unique Case ID No. 02401C0029891999
1. Sh. Prem Chand Jain
S/o Sh. Har Sahai Mal Jain
2. Sh. Narinder Kumar Jain
S/o Sh. Prem Chand Jain
R/o WZ - 603A, Village Palam,
New Delhi.
3. Sh. Dhar Singh
S/o Sh. Jai Lal
R/o WZ - 303A, Village Palam,
New Delhi. ......Plaintiffs
Versus
1. Sh. Sri Ram S/o Sh. Sita Ram (now deceased)
Through his LR's
(a) Sh. Rati Ram S/o Sh. Sri Ram
(b) Sh. Nand Ram S/o Sh. Sri Ram
(c) Sh. Bhagwan Dass S/o Sh. Sri Ram
(d) Sh. Bhagwani Devi W/o Sh. Sri Ram
(e) Sh. Ram Kaur D/o Sh. Sri Ram
C/o Sh. Bhagwan Singh, Sanitary Inspector,
Delhi Cantonment Board, Sadar Bazar,
Delhi Cantonment,
New Delhi.
2. Sh. Sher Singh S/o Sh. Sita Ram (now deceased)
Through his LR's
(a)Sh. Devi Ram S/o Sh. Sher Singh
(b)Sh. Puran Singh S/o Sh. Sher Singh
3. Sh. Bale Ram S/o Sh. Sita Ram (deleted on 15.10.02)
4. Sh. Ram Phal S/o Sh. Hari Chand
5. Sh. Charan Singh S/o Sh. Hari Chand
6. Sh. Virender Singh S/o Sh. Hari Chand
7. Sh. Narain Singh S/o Sh. Hari Chand
8. Sh. Mahinder Singh S/o Sh. Hari Chand
R/o Main Road, Sadar Bazar,
Delhi Cantonment,
Suit No. 2421/08 Page 1 /29
Prem Chand Jain & Ors. v. & Sri Ram & Ors.
New Delhi.
9. Sh. Suraj S/o Sh. Sher Singh
R/o Main Road, Sadar Bazar,
Delhi Cantonment,
New Delhi - 110011
10. Sh. Dharambir S/o Sh. Man Singh
11. Sh. Surinder S/o Sh. Man Singh
12. Sh. Satbir S/o Sh. Man Singh
R/o Mangolpuri Railway Station Road,
New Delhi
13. Sh. Dalip Singh S/o Sh. Man Singh
14. Sh. Ran Singh S/o Sh. Man Singh
15. Sh. Ram Kishan S/o Sh. Lal Singh (deleted on 15.10.02)
R/o Village Mangolpuri,
New Delhi
16. Sh. Ved Pal S/o Sh. Jage Ram
17. Sh. Dharam Pal S/o Sh. Jage Ram
18. Sh. Rambir S/o Sh. Jage Ram
19. Sh. Dharambir S/o Sh. Jage Ram
20. Sh. Randhir S/o Sh. Jage Ram
R/o D - 248, Mangolpuri,
Palam Colony,
New Delhi.
21. Sh. Chander Bhan S/o Sh. Lehri
R/o Village Palam,
New Delhi.
22. Gaon Sabha Palam
Through Block Development Officer,
Najafgarh,
New Delhi.
23. Union of India
Through Secretary (Revenue)
Tis Hazari Court,
Delhi. .....Defendants
Date of filing of the suit : 17.02.1987
Date of reserving order : 21.07.2011
Date of pronouncement : 29.08.2011
Suit No. 2421/08 Page 2 /29
Prem Chand Jain & Ors. v. & Sri Ram & Ors.
JUDGMENT
1. In this suit for permanent injunction, the plaintiffs are seeking a decree of injunction restraining the defendants from raising unauthorized construction at point ABCD on the phirni/public land and at point CDEF on the plaintiffs' land bearing Khasra no. 32/16/1 and 32/16/3 situated within the Revenue Estate of Village Palam, New Delhi (adjacent to Najafgarh Road, Village Palam, New Delhi) as shown in Red Colour in the site plan Ex.PW-1/4 (Hereinafter 'the suit land).
2. Precisely stated, the plaintiff no.1 and 2 are the recorded owners of the land comprised in Khasra no. 32/16/1 and 32/16/3 situated on out-skirt/gora of Village Palam, New Delhi. The plaintiff no.1 and 2 have inherited the said land from their fore - fathers. The plaintiffs are in possession of the said land. The plaintiff no. 3 is the owner of the house no. WZ - 303, Palam, New Delhi facing Najafgarh Road and shown at point B in the site plan. The defendants are the recorded owners of Khasra no. 32/15/1 situated within the Revenue Estate of Village Palam, New Delhi. There is a 24' 9"
wide (3 gatha) phirni/passage in the village Palam. It is a thorough-fare/passage of the village Palam. The plaintiffs use the said phirni/ passage to reach their land in Khasra no. 32/16/1 and 32/16/3. The said phirni/passage is a government land/public land.
3. According to the plaintiffs, the defendants threatened to raise construction at point A to B and C to D over the said passage/phirni in order to close the said phirni and merge it with their land in Khasra no. 32/15/1. The passage CDEF is part of the plaintiff's land which they have Suit No. 2421/08 Page 3 /29 Prem Chand Jain & Ors. v. & Sri Ram & Ors.
left to access their land in Khasra no. 32/16/3.
4. The case of the plaintiffs is that the defendants had collected building material for raising unauthorized construction in order to close the said passage. The plaintiffs apprehended that the defendants could close the said passage at point ABCD and grab their land shown at point CDEF. The plaintiffs filed a complaint with Ld. S.D.M, Punjabi Bagh, Tis Hazari, Delhi on 06.01.1987. It is stated that Ld. S.D.M sent the said complaint to the concerned S.H.O. for necessary action. It is stated that the S.H.O. has not taken any action. It is stated that the defendants have no right, title or interest in the suit land as shown in red colour in the site plan. The land shown in ABCD is the village phirni/government land and the land shown in CDEF is the plaintiff's land. On 16.02.1987 at 09.00 AM, the defendants had brought laborers/masons for digging the foundation at the point AB but they could not succeed due to timely intervention by the plaintiffs and other villagers. The defendants had threatened to encroach upon the suit land and therefore, the plaintiffs filed the suit.
5. The defendant no.1, 2, 4 to 11, 13, 14, 16, 17 and 19 to 21 filed their joint written statement.
6. In their written statement, the defendants stated that the plaintiffs have no cause of action against them. The plaintiffs have misrepresented facts, and concealed true facts from the Court. The plaintiffs are not owners of the Khasra no. 32/16/1 and 32/16/3. There is no common passage or rasta which is shown as ABCD and CDEF in red colour in the site plan. The plaintiffs intend to grab the defendants' land. The plaintiffs have no locus standi to file Suit No. 2421/08 Page 4 /29 Prem Chand Jain & Ors. v. & Sri Ram & Ors.
the suit. The plaintiffs have no right, title or interest in the suit land. The plaintiffs are not in the use and enjoyment of the suit land.
7. According to the defendants, the suit land which is marked as ABCD and CDEF in red colour in the site plan is the part and parcel of the land comprised in Khasra no. 32/15/1 measuring 2 Bigha 14 Biswas. It is stated that one Sh. Har Saroop S/o Sh. Panna Lal is the recorded owner of the Khasra no. 32/16/1 and 32/16/3. It is denied that the said passage is a government land. It is denied that the plaintiffs have left the passage as shown in CDEF from their land to access their land in Khasra no.32/16/3. It is stated that the defendants are co-owners of the Khasra no.32/13, 14 and 15/1 which are adjacent to the main Najafgarh Road, Palam. It is stated that the length of the said three Khasra numbers towards main Najafgarh Road is 70 gatha and the said land shown in ABCD is part and parcel of Khasra no.32/15/1 measuring 2 Bigha 14 Biswas. The defendants have legal right to raise construction over the portion ABCD and CDEF. It is stated that the plaintiffs have grabbed the passage between the Khasra no.32/15/1 and the house no.301 to 303, and constructed house thereupon. The plaintiffs have not given the dimensions of the Khasra no.32/16/1 and 32/16/3. The defendants are in possession of the suit land and therefore, the court fees should have paid @ Rs.1,000/- per sq. yds. It is prayed that the suit is liable to be dismissed.
8. In their written statement, the defendant no.22 and 23 stated that the land falling in Khasra no.182 is phirni and vested in the Gaon Sabha. No one has right to encroach upon the phirni. They have right to remove the Suit No. 2421/08 Page 5 /29 Prem Chand Jain & Ors. v. & Sri Ram & Ors.
encroachment as per law. As per revenue records, Khasra no. 182 of Village Palam is phirni and is a public property. The defendant no.1 to 21 have no right, title or interest in the said land.
9. In the replication to the written statement, the plaintiffs denied the contention of the defendants and re- stated their case. It is stated that the suit land as shown in red colour in the site plan is common passage/phirni for the villagers to approach the main road. The plaintiffs have right to ingress and egress from their land to the main road. The defendants are intending to encroach upon the public land and merge it with their land adjoining the suit land. It is denied that the suit land is part of Khasra no.32/15/1. The passage is in existence since long. The plaintiffs are enjoying the said passage since generations. It is stated that Khasra no.32/16/1 and 32/16/3 are recorded in the name of the father and grand - father of the plaintiff no.1 and 2. The plaintiff no.1 and 2 are lineal male descendants of Sh. Har Sahai Mal s/o Sh. Panna Lal. It is denied that the said passage is part of Khasra no. 32/15/1.
10. In order to solve the controversy that whether the suit the disputed land is a passage/phirni or it is part of the land of the defendants in Khasra no.32/15/1, the Court vide order dated 28.10.1992, with the consent and at the expenses of the parties, had appointed the Tehsildar (Mehrauli) as local commissioner to demarcate the suit land shown as ABCDEF in red in the site plan and submit the demarcation report.
11. On 30.03.1995, Tehsildar (Mehrauli) carried out demarcation and reported that the land ABCD is part of Suit No. 2421/08 Page 6 /29 Prem Chand Jain & Ors. v. & Sri Ram & Ors.
phirni i.e. Khasra no.182, and the land CDEF is not part of phirni.
12. The defendants had preferred objection against the said demarcation report which was dismissed vide order dated 24.05.1997.
13. On the basis of the pleadings of the parties, following issues were framed on 10.11.1998:
1. Whether the plaintiffs are entitled to injunction against the defendants or their agents restraining them from carrying out illegal and unauthorized construction at point ABCDEF, as asked for, in the property in question?
OPP
2. Whether there is no cause of action in the suit? OPD
3. Whether the plaintiffs have no locus standi to file the present suit? OPD
4. Whether the plaintiffs are not entitled for the relief claimed being not the owners of the property in question? OPD
5. Relief, if any.
14. In the evidence, the plaintiff no.2 (PW-1) and Sh. Padam Chand Jain (PW-2) appeared for the plaintiffs whereas the defendant no.1 to 21 examined the defendant no.9/Sh. Suraj Bhan s/o Sh. Sher Singh (D1W1) and the defendant no. 2(b)/ Sh. Puran Singh s/o Sher Singh (D1W3) and Sh. Suresh Singh/resident of the village Palam (D1W2), and the defendant no.22/Gaon Sabha, Palam and the defendant no. 23/Union of India examined Sh. Rajendra Ram, Patwari, office of the District Commissioner, South - West as D22W1.
15. Ex.PW-1/1 is the Khatoni and Ex.PW-1/2 is the Khasra Girdawari in respect of the Khasra no. 32/16/1 and Suit No. 2421/08 Page 7 /29 Prem Chand Jain & Ors. v. & Sri Ram & Ors.
32/16/3, village Palam, Mehrauli, New Delhi. Certified copy of Mauza of village Palam issued on 08.03.1999 is Ex.PW-1/3. Ex.PW-1/4 is the site plan of the suit land.
16. Ex.DW-1/1 is the demarcation report dated 09.07.88.
17. Ex.D22W1 is the aks-sizra of the village Palam. Ex.D22W2 is the Khasra Girdawari in respect of Khasra no. 32/15/1. ExD22W3 is the Khatoni in respect of Khasra no. 32/16/1 and 32/16/3 (Already exhibited as Ex.PW-1/1). Ex.D22W4 is the Khatoni in respect of phirni/Khasra no.182. Ex.D22W5 is the Khatoni in respect of khasra no. 32/15/1, 32/16/1, 32/16/3 and Khasra no.182.
18. I have heard arguments of Sh. J. K. Jain, Adv. for the plaintiffs, Sh. D. S. Sehrawat, Adv. for the defendant no.1 to 21 and Sh. Vikram Singh, Adv. for the defendant no.22 and
23. I have perused the written arguments filed by the defendant no.1 to 21.
19. On careful assessment of evidence on record in the light of oral and written arguments filed by the defendants, issue wise finding is as under:
ISSUE NO.1 to 4:
20. Issue no.1 to 4 are inter-related and therefore, they are taken up together for final determination.
21. Ld. Counsel for the plaintiffs argued that the portion shown as ABCD in the site plan Ex.PW-1/4 is phirni of the village Palam, New Delhi. He argued that the plaintiffs are bhoomidars of the Khasra no.32/16/1 and 32/16/3 Suit No. 2421/08 Page 8 /29 Prem Chand Jain & Ors. v. & Sri Ram & Ors.
situated in the village Palam, New Delhi. He argued that the plaintiff no.1 has proved the Khatoni Ex.PW1/1 and Khasra Girdawari Ex.PW1/2 of the Khasra no.32/16/1 and 32/16/3, village Palam, New Delhi. He argued that the Mauza Ex.PW-1/3 and aks-sizra Ex.D22W/1 of the village Palam, New Delhi show the existence of the phirni/rasta at point ABCD.
22. Ld. Counsel for the plaintiffs argued that the Court had appointed Tehsildar, Mehrauli as Local Commissioner to demarcate the suit land shown in red colour as ABCDEF in the site plan Ex.PW-1/4 and report whether the suit land is a rasta/phirni. He argued that the said Local Commissioner was appointed with the consent of the parties at their expenses. He argued Ld. Local Commissioner had carried out demarcation on 30.03.1995 in the presence of the parties to the suit. He argued that Ld. Local Commissioner in his report has stated that land shown as ABCD in the site plan Ex.PW-1/4 is phirni/passage comprised in Khasra no.182, and the land shown as CDEF is not the phirni land. He argued that the report of Ld. Local Commissioner is accompanied by aks- sizra of the village Palam, Teh. Mehrauli. He argued that the objection preferred by the defendants against the said report was dismissed by this Court vide order dated 24.05.1997. He argued that the said order dismissing the objections has not been challenged and attained finality. He argued that Local Commissioner's report dated 30.03.1995 is admissible even in evidence in the absence of examination of local Commissioner in the Court. He argued that a local commissioner need not be examined to prove his report. He argued that the defendants had never applied to the Court for cross-examination of local commissioner. He relied upon judgment of Hon'ble Delhi High Court in the case of M/s Suit No. 2421/08 Page 9 /29 Prem Chand Jain & Ors. v. & Sri Ram & Ors.
New Multan Timber Store and others v. Rattan Chand Sood, 1997 AIHC 4288 that "examination of Commissioner in Court is not necessary to prove the report". He argued that the defendants have not led any legally admissible evidence to prove that the suit land is part of Khasra no.32/15/1. He argued that plaintiffs are entitled to the relief of permanent injunction, as prayed.
23. Ld. Counsel for the defendant no.1 to 21 argued that the Local Commissioner's report dated 30.03.1995 cannot be read in evidence. He argued that the said report has not been proved in accordance with law. He argued that the said Local Commissioner has not been examined in the Court. He argued that it was mandatory to examine the local commissioner to prove the report as the defendants had filed objection thereto. He argued that the Court had dismissed the objections without examining the local commissioner. He argued that a disputed report can't be read in the evidence in the absence of examination of the Local Commissioner. He argued that local commissioner had not taken measurements from fixed points. He argued that Local Commissioner had measured the land from a distant point. He argued that Local Commissioner has not followed the rules governing demarcation. He argued that local commissioner has not demarcated the defendants' land in Khasra no. 32/15/1 in terms of the order dated 28.10.1992. He argued that there is no legal evidence except local commissioner's report dated 30.03.1995 to prove that the portion shown as ABCD is phirni/passage bearing Khasra no.182.
24. Ld. Counsel for the defendants further argued that the demarcation report dated 09.07.88 Ex.DW-1/1 shows that Suit No. 2421/08 Page 10 /29 Prem Chand Jain & Ors. v. & Sri Ram & Ors.
the land shown as ABCDEF in red colour in the site plan is part and parcel of Khasra no.32/15/1. He argued that the plaintiffs have not challenged the report dated 09.07.1988 Ex.DW-1/1 which shows that house WZ-300 is constructed on the Khasra no.182. He argued that the plaintiffs have encroached upon the public passage and they are seeking a passage through the defendants' land in Khasra no.32/15/1.
25. Ld. Counsel for the defendants argued that the defendants are owners of land comprised in Khasra no.32/13, 14 and 15/1 which has a length of 70 gatha along with the Najafgarh road, and the portions shown in red colour is part and parcel of the land comprised in Khasra no.32/15/1. He argued that the report of the local commissioner appointed by the Court has not been proved in accordance with law and therefore, it cannot be considered at all. He relied upon Sitaram v. Ram Charan, AIR 1995 MP 134, Radhey v. Board of Revenue, U.P., AIR 1990 ALL 175; Ibrahim Beg v. Mt. Aziman, AIR 1936 Oudh 192; Sita Ram v. Hans Nath, 1982 All.L.J. 561; Chander Parkash Malhotra v. V. P. Malhotra, 1991 PLJ 228; Laxmi V. Rajender, 1990 (90) RD 1; Rahmullah v. the District Judge, Siddarth Nagar, 1999 (90) RD 1; Badan Prasad Jaswal v. Bira Khamari, AIR 1990 Ori. 32 and Khurseed Bano v. Vasant Mallikarjun Manthalkar, AIR 2003 Bom. 52. He referred Section 101 of the Punjab Land Revenue Act and instructions to be followed by Revenue Officers for measurement of boundaries.
26. In the additional written arguments, he argued that the defendants got Khasra no. 32/15/1 demarcated from the revenue officials on 8.11.2006. He argued that the said Suit No. 2421/08 Page 11 /29 Prem Chand Jain & Ors. v. & Sri Ram & Ors.
report dated 8.11.2006 shows that Dhara Singh, Budh Ram and Dilbagh Singh have encroached upon the phirni/passage and 2 biswas land of the defendants. He argued that defendant no. 9 has filed a case under Section 133 Cr.P.C. in the Court of Ld. S.D.M. Najafgarh against them. He argued that the plaintiffs have failed to prove that the portion shown in red colour in the site plan is a common passage and part and parcel of phirni land bearing Khasra no.182.
27. First and foremost contention of the defendant no. 1 to 21 is that the local commissioner's report dated 30.03.1995 cannot be read in evidence as it has not been proved in accordance with law. This Court is of the opinion that the local commissioner can be read in evidence even in the absence of his examination. The ratio of judgment of Delhi High Court in M/s New Multan Timber Store v. Rattan Chand Sood, 1997 AIHC 4288; is squarely applicable to the facts of the present case. In the said case, the respondent had filed a suit for possession on the allegation that the appellant had encroached upon the land belonging to the respondent. The appellants had contended that they had raised wooden cabin on their land and thus not encroached upon any part of the respondent's land. The Trial Court had opined that there was no encroachment on the land belonging to the respondent and thus, dismissed the suit. Ld. Appellate Court had allowed the appeal and decreed the suit for possession of 4.4 biswas of land as shown in the report of the Local Commissioner and thereafter, the appellant filed a Regular Second Appeal. Hon'ble Delhi High Court formulated a substantial question of law as to "Whether a judgment and decree can be passed on the basis of the report of the Local Commissioner which has not been Suit No. 2421/08 Page 12 /29 Prem Chand Jain & Ors. v. & Sri Ram & Ors.
proved in accordance with law". The appellant had contended that the first Appellant Court was wrong in placing reliance on the report of the Local Commissioner which had not been proved in accordance with law as he was never examined as witness by the Court and thus, no opportunity was afforded to the appellants to challenge the said report and more so, in view of the objections filed by the appellants to the said report. It was contended that the said report was liable to be ignored.
28. In the said case, the respondent had argued that the Local Commissioner was appointed for local investigation under Order 26 Rule 9 of the Code of Civil Procedure (In short 'the Code') and his report is legal evidence under Order 26 Rule 10 of the Code. It was argued that the said report can be looked into and read in evidence without any formal proof and therefore, it can form the basis of a judgment. It was argued that no formal proof of the said report was needed before reading the said report in evidence. Hon'ble Delhi High Court had taken note of the provisions contained in Order 26 Rule 9 and 10 of the Code, as enumerated below for ready reference:
Commissions for local investigations "9. In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual rent profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report Suit No. 2421/08 Page 13 /29 Prem Chand Jain & Ors. v. & Sri Ram & Ors.
thereon to the Court:
Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.
10. Procedure of Commissioner. - (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.
(2) Report and depositions to be evidence in suit. - The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to the manner in which he has made the investigation.
29. After taking note of the afore-mentioned provisions and contention of the appellant, as stated above, it was held in the para no. 12 of the Judgment that:
"It is abundantly clear from the relevant provisions of law cited above that the report of the Commissioner under Order 26, Rule 10, C.P.C. is a legal evidence. Hence, it was not all necessary for the Court to examine the Commissioner for the purposes of proving the said report. No formal proof is needed to prove the report when the Commissioner has been appointed under Order 26, Rule 9, Suit No. 2421/08 Page 14 /29 Prem Chand Jain & Ors. v. & Sri Ram & Ors.
C.P.C. As per the provisions of Order 26, Rule 10, C.P.C. the report can be read in evidence without any formal proof of the same, though it is true that the Court suo moto or at the instance of any of the parties may summon the Local Commissioner and examine him as a witness. The appellants herein filed objections against the report of the Local Commissioner. However, for the best reasons known to them they did not choose to summon the Local Commissioner and reconciled themselves with the report as it was. Thus, if the Commissioner was not summoned and examined as a witness and as such no opportunity was given to the appellant to cross-examine the Local Commissioner they can blame none but themselves for the impasse which filed themselves in. Thus the statute has put a handle in the hands of any of the parties through enactment of the provisions of Rule 10 of Order 26, C.P.C. However, if they did not use the said handle they can blame none but themselves. Hence the appellants cannot be heard to say now that the report of the Local Commissioner cannot be acted upon since the Local Commissioner was not examined as a witness and they were not given any opportunity to cross-examine him.
"A point very much akin to the point in hand arose before a single Judge of the Andra Pradesh High Court in Vemusetti Appayyamma, Appellant v. Lakshman Sahu AIR 1973 AP 168. The learned single Judge tackled the said problem by observing: "The learned counsel for the appellant however, objects to the Commissioner's report being accepted and acted upon without its being Suit No. 2421/08 Page 15 /29 Prem Chand Jain & Ors. v. & Sri Ram & Ors.
marked and without the Commissioner being examined. But when the Court appoints a Commissioner under O. 26, R. 9, C.P.C. for making a local inspection and to submit a report, the Commissioner is given the discretion to make a local inspection and record evidence if necessary and submit a report together with such evidence as he thinks fit. Under sub-rule (2) of Rule 10 of Order 26, C.P.C., the report of the Commissioner and the evidence taken by him form part of the record. When the Rule lays down that it forms part of the record irrespective of whether it is marked or not, the Court is bound to take that evidence into consideration. The failure to mark it as a document on behalf of the parties does not exclude it from the record. Sub-rule (2), however, lays down that either the Court or any of the parties may examine the Commissioner but if the Commissioner is not examined, the report submitted by him does not cease to form part of the record. It is nowhere laid down that unless the Commissioner is examined and through him his report is marked as an exhibit, the report of the Commissioner cannot be acted upon. That being so, the lower Appellate Court was right in considering the Commissioner's report and in, accepting the defendant's evidence and rejecting that of the plaintiff's witnesses in the light of that. The finding whether the plaintiff is in possession of the plaint schedule site or not is a finding of fact which is supported by the evidence on record and is binding on this Court in Second Appeal."
30. Hon'ble Delhi High Court considered judgment in Harbhajan Singh v. Shakuntala Devi, 1976 Rajdhani Law Suit No. 2421/08 Page 16 /29 Prem Chand Jain & Ors. v. & Sri Ram & Ors.
Reporter 178 that "It is next contended that, in any event, the report and material enclosed by the Commissioner with it could not be substantive evidence and at best could be utilized to corroborate other evidence on the question in controversy. This contention seems to be untenable because if the report of the Commissioner and the material enclosed with it constituted legal evidence, and I have held above that it did, I do not see how it could not be used as a substantive piece of evidence to base the finding. The Authority had appointed the Commissioner to inspect the spot, to make an investigation and to submit a report and the Authority was entitled to accept the same and base its finding on such material."
31. It was further held in the para no.14 of the Judgment that "Admittedly the Commissioner Shri Ishwar Dass was appointed on March 4, 1976 by the learned Sub- Judge at the instance of the appellants on their application dated January 9, 1970 moved by them. The Commission was executed in the presence of both the parties. The report of the Commissioner dated September 13, 1970 bears signatures of the appellants. Thus it does not lie in the mouth of the appellants to say that since the Commissioner was not examined hence the said report should not be taken into consideration. Non-examination of the Commissioner does not invalidate the said report. It is a legal evidence as per the provisions of Order 26, Rule 10(2), C.P.C. Furthermore, the appellants could have examined the Local Commissioner, if they wanted to do so, and they could have made a request to that effect to the learned Sub-Judge who could have Suit No. 2421/08 Page 17 /29 Prem Chand Jain & Ors. v. & Sri Ram & Ors.
granted their prayer under Order 26, Rule 10(2), C.P.C. However, for the best reasons known to them they did not avail of the said opportunity. Consequently, this Court feels that this argument is not available to the learned counsel for the appellants."
32. Hon'ble Delhi High Court held in the para no.15 of the Judgment that "The learned Sub-Judge was of the view that since the Commissioner was not examined hence the report submitted by him could not be read in evidence. The said view was obviously not correct in accordance with law."
33. Dealing with the contention that the report cannot be looked into without examining the Commissioner, Hon'ble Delhi High Court held that the report of the Commissioner is a legal and valid evidence under Order 26, Rule 10(2), CPC.
34. In the present case, the Court vide its order dated 28.10.1992 had appointed Tehsildar, Mehrauli as a Local Commissioner at the request of the parties to the suit and at their expenses. Local commissioner was directed to demarcate the suit land shown as ABCDEF in the site plan and report whether the suit land is rasta/phirni. It is pertinent to mention that the Local Commissioner had requested for providing site plan filed by the parties to the suit. Since the defendants had not filed any site plan, the Local Commissioner was directed vide order dated 20.12.1994 to demarcate the land as per site plan of the plaintiffs. Local Commissioner had carried out the inspection in the presence of the parties on 30.03.1995 and submitted his report accompanied by aks-sizra of the village Palam. In his report, the Local Commissioner has reported that "the land shown as ABCD in the site plan is phirni/rasta falling under Khasra Suit No. 2421/08 Page 18 /29 Prem Chand Jain & Ors. v. & Sri Ram & Ors.
no.182 and not part of the land of Khasra no.32/15/1. It has also been reported that the land shown as CDEF is not phirni land. The defence witnesses have admitted that they were present during the time of demarcation. The defendant no.1 to 21 preferred objection against the said report which was dismissed vide order dated 24.05.1997. The said order has not been challenged and attained finality. Moreover, the defendant no.1 to 21 never made any prayer for examination of the Local Commissioner during the evidence. The defendant no.1 to 21 was contended with the report of the Local Commissioner and it is too late for them to contend that the said report cannot be read in evidence as the Commissioner was not examined in evidence. The report of the Local Commissioner is a legal evidence under Order 26 Rule 10 (2) of the Code.
35. No formal proof is needed to prove the report of a local commissioner appointed under Order 26, Rule 9 of the Code. It is not mandatory for the Court to examine the Local Commissioner to prove the report. The report of the Local Commissioner can be read in evidence without any formal proof. The report of the Local Commissioner is substantive piece of evidence and the Court is bound to take that evidence in consideration. The report cannot be excluded from consideration for the reason that it has not been marked or exhibited during the evidence. Non-examination of the Local Commissioner would not invalidate the report. It is a legal and valid evidence under Order 26, Rule 10 (2) of the Code. It can form basis of judgment.
36. Therefore, it is hereby held that the land shown at point ABCD in the site plan Ex.PW-1/4 is phirni/rasta and part Suit No. 2421/08 Page 19 /29 Prem Chand Jain & Ors. v. & Sri Ram & Ors.
of Khasra no.182.
37. Further, Aks-sizra Ex.PW-1/3 shows that the land ABCD as common passage connecting the village Palam with the main Najafgarh Road. The D22W1 is the patwari from the office of S.D.M Najafgarh, Delhi. The D22W1 proved the aks- sizra D22W1/1 wherein the land adjacent to Khasra no. 32/15/1 and Khasra no.32/16/1 is shown as part of phirni land comprised in Khasra no.182. Ex.D22W4 is the Khatoni of phirni land comprised in Khasra no.182 (02 - 08). The defendants have not disputed the existence of phirni land comprised in Khasra no.182 adjacent to their land.
38. According to the defendants, the plaintiffs have encroached upon the said phirni/passage and constructed residential house thereupon.
39. PW-1 in his cross-examination deposed that the portion adjacent to point B belongs to Sh. Budh Ram Joshi. He deposed that there are three houses between point B and D in the site plan towards eastern side. He deposed that the houses were constructed by Sh. Budh Ram Joshi, Maha Singh and Jai Lal before 50 years ago. He deposed that the houses were constructed by Late Budh Ram Joshi and Late Jai Lal before his memory. PW-1 in his cross-examination deposed that the portion shown as mark ABCD in the site plan Ex.PW-1/4 is lying vacant. He deposed that the defendants have not encroached upon the phirni. He deposed that the phirni is vested in Gaon Sabha. PW-2 is one of the recorded owners of the land comprised in Khasra no.32/16/1 and 32/16/3. He was 67 years old on the date of his evidence on 19.05.2004. He deposed that there is phirni road touching the house of Sh. Budh Ram Joshi towards west. He deposed Suit No. 2421/08 Page 20 /29 Prem Chand Jain & Ors. v. & Sri Ram & Ors.
that the said phirni was left during consolidation proceedings. PW-2 in his cross-examination deposed that he was born in Village Palam. His house is 60 yards away from the suit land. He deposed that the house of Sh. Budh Ram was constructed in 1945-46. He deposed that he was 12 years old at that time of construction of the said house. He deposed that the house of Sh. Budh Ram was constructed before consolidation.
40. D1W1 in his cross-examination stated that the house of the plaintiff no.3 is more than 60 - 70 years old. He deposed that there are three houses. He deposed that the said houses are in the straight line. He deposed that he had not raised any objection at the time of demarcation. He deposed that phirni is blocked beyond the disputed portion. D1W2 in his cross-examination stated that the house of the plaintiff no.3 was constructed after he attained the age of discretion.
41. D1W3 in his cross-examination deposed that the there is a rasta touching the Khasra no.32/15/1 towards east. He deposed that in the eastern side of the above-said rasta, there is phirni and the width thereof is 3 gatha (24' 9"). He deposed that the portion shown as AB to EF in the site plan Ex.PW-1/4 is lying vacant and there is no construction.
42. Therefore, it is proved that the plaintiffs have not encroached upon the phirni land. The plaintiffs' houses were constructed before 50 years. The phirni land is still vacant and connected to main Najafgarh Road.
43. According to the plaintiffs, the plaintiff no.1 is the owner of the land comprised in Khasra no.32/16/1 and Suit No. 2421/08 Page 21 /29 Prem Chand Jain & Ors. v. & Sri Ram & Ors.
32/16/3 within the revenue estate of Village Palam. It is further case of the plaintiffs that the plaintiff no.3 is the owner of the house no.WZ-303, Village Palam, New Delhi. D22W1 was the Patwari who had brought the record from the office of S.D.M. Najafgarh, Delhi. He proved the Khatoni Ex.D22W3 and Khasra Girdwari Ex.D22W5. The plaintiff no.1 is the recorded owner of the land comprised in Khasra no. 32/16/1 and 32/16/3 vide Ex.D22W3 and Ex.D22W5. The said land has been shown adjacent to the phirni of the Village Palam in aks-sizra Ex.D22W1. It is the admitted case of the defendants that the house of the plaintiff no.3 is situated at point B of the site plan. D3W1 in his cross-examination deposed that the plaintiffs are owners of Khasra no.32/16/1.
44. Therefore, it is proved that the plaintiff no.1 is the recorded owner of the land comprised Khasra no.32/16/1 and 32/16/3. The plaintiff no.3 has his house adjacent to the phirni and therefore, they have locus standi to file the suit.
45. According to the plaintiffs, the land shown at point CDEF was left out of land comprised in Khasra no.32/16/1 to access their land comprised in Khasra no.32/16/3. The plaintiff no.1 is the recorded owner of the land comprised in comprised in Khasra no.32/16/1 and 32/16/3 vide Ex.D22W3 and Ex.D22W5. The phirni land ABCD is adjacent to the land of the plaintiff no.1 as shown in aks-sizra Ex.D22W1. PW-1 in his cross-examination stated that the portion CDEF is part and parcel of Khasra no.32/16/1 (2 - 8). The defendants have made no suggestion to the PW-1 and PW-2 that the land shown at point CDEF is part and parcel of Khasra no.32/15/1 and not part of Khasra no.32/16/1. D1W1 in his cross- examination stated that he does not know the length and Suit No. 2421/08 Page 22 /29 Prem Chand Jain & Ors. v. & Sri Ram & Ors.
breadth of his Khasra no.32/15/1. He deposed that he does not any paper to show that the length of his plots is 70 gathas. D1W3 admitted that the plaintiffs are owners of the Khasra no.32/16/1.
46. Therefore, on the basis of the evidence as stated above, it is proved that the land shown at point CDEF is part and parcel of land of the plaintiffs comprised in Khasra no. 32/16/1 to access their land in Khasra no.32/16/3.
47. In so far as reliance of the defendant no.1 to 21 on the demarcation report dated 09.07.1988 Ex.DW1/1 is concerned, it can be stated that the said report has not been proved as per law. The defendants in their examination in chief stated that the said demarcation was carried out in the presence of the parties but they have not confronted the PW's with the said report. In their written arguments, it is contended that the defendants have obtained the said report dated 09.07.1988. The report dated 09.07.1988 cannot be relied upon. It has not been proved in accordance with law.
48. The said report Ex.DW-1/1 is contrary to the depositions of the DW's. The said demarcation was not carried in the presence of the plaintiffs. The report is not accompanied by any site plan. It records that the house no.WZ-303 is constructed on the eastern side of the Khasra no.32/15/1. The report does not state anything with regard to the phirni as to whether the phirni is in existence or encroached by the plaintiffs. Aks-sizra Ex.D22W1 and Khatoni Ex.D22W4 prove the existence of phirni forming part of Khasra no.182, Village Palam, Delhi. D1W1 deposed that the house of Sh. Dhara Singh is about 40 years old. He deposed that it could be 60 - 70 years old. D1W2 in his cross-
Suit No. 2421/08 Page 23 /29Prem Chand Jain & Ors. v. & Sri Ram & Ors.
examination stated that the house of Sh. Dara Singh was constructed after he had attained the age of discretion. He deposed that there is a phirni road towards the east side of the defendants' plot in the records. D1W3 in his cross - examination deposed that there is a rasta touching the Khasra no.32/15/1 towards east. He deposed that in the eastern side, phirni arrives and the width thereof is 3 gatha (24' 9"). He admitted that the portion mark AB to EF in the plan Ex.PW-1/4 is lying vacant and there is no construction. Therefore, it is apparent that the report Ex.DW-1/1 is contrary to revenue records Ex.D22W1 and Ex.D22W4, and further, to the depositions of the D1W3 that there is a phirni towards the east side of the plot of the defendants and the said phirni/rasta is vacant, and there is no construction. The house of the plaintiff no.3 was constructed at least 50 years ago. The said report Ex.DW-1/1 is a procured report and obtained without notice to the plaintiffs. The said report Ex.DW-1/1 cannot be considered at all.
49. The case of Sita Ram v. Ram Charan (supra) and Radhey and another v. Board of Revenue (supra) were not related to demarcation carried out by a local commissioner under Order 26 Rule 9 of the Code. Rather they go against the defendants as they have not examined the Tehsildar who had inspected the site and prepared the report Ex.DW-1/1. In so far reliance on Ibrahim Beg v. Mt. Aziman and another (supra) is concerned, it can be noted that the said decision was based on Order 25 Rule 9 of the Code. It is apparent that the provision of Order 26 Rule 10 was inserted thereafter. The said decision is not applicable to the present case. It is now settled that the report of the local commissioner appointed under Order 26 Rule 10 is legal Suit No. 2421/08 Page 24 /29 Prem Chand Jain & Ors. v. & Sri Ram & Ors.
evidence and can be relied in the absence of his examination. In M/s New Multan Timber and others v. Rattan Chand Sood (supra); Hon'ble Delhi High Court held that report of the local commissioner is a legal evidence under Order 26 Rule 10 (2) of the Code and it can be relied upon without formal proof of the said report and non-examination of the commissioner does not invalidate the report. In Vemusetti Appayyamma v. Lakshman Sahu, AIR 1973 AP 168; It was held that the report of the Commissioner and the evidence taken by him form part of the record under sub-rule (2) of Rule 10 of Order 26, C.P.C. irrespective of whether it is marked or not, the Court is bound to take that evidence into consideration. "It is nowhere laid down that unless the Commissioner is examined and through him his report is marked as an exhibit, the report of the Commissioner cannot be acted upon." In Harbhajan Singh v. Shakuntala Devi, AIR 1976 Delhi 175; it was held that the report of the commissioner is admissible in evidence as substantive evidence without examination of Commissioner.
50. In Ramautar Gope and others v. Sheonandan Mistri and others, AIR 1962 Pat. 273; it was held that "commissioner's report appointed to measure the land in dispute is admissible in evidence under O.26 R.10(2) C.P.C. and the fact that the commissioner has not been examined at the trial cannot in law make his report inadmissible in evidence. In State v. Kottammal Mammeeriyakutty, AIR 1985 Kerala 109; it was held that "There could be no doubt that the court below was perfectly justified in placing reliance on the materials found in Exts. XI and X2, which formed part of the records, and which is evidence in the case. Of course, if the opposite side had any objection to any of the matters Suit No. 2421/08 Page 25 /29 Prem Chand Jain & Ors. v. & Sri Ram & Ors.
mentioned in the reports, or the manner in which he (the Commissioner) made the investigation, what that party ought to have done was to have the Commissioner examined with the leave of the court and elicit such information as it required. Not having been chosen to do that, the appellant State could not at this distance of time make a submission that the court below ought not to have relied on Exts. XI and X2 reports submitted by the Commissioner which, as already noticed, would be evidence in the case, and would form part of the record in the case." The case of Sita Ram v. Hans Nath (supra) related to mode of measurement of land. The case of Chander Parkash Malhotra v. V. P. Malhotra (supra), related to objections under Order 26 Rule 14 of the Code. The case of Laxmi v. Rajender (supra) related to the report of the commissioner with regard to possession. In Rahmullah v. The District Judge, Siddarth Nagar (supra), the report of the local commissioner appointed under Order 39 Rule 7 of the Code was not considered at an interim stage on the ground that the commissioner was not subjected to cross-examination.
51. In the case of Badan Prasad Jaswal v. Bira Khamari (supra), the order rejecting the objections was challenged whereas in the present case, the said order has become final. In the present case, the defendants, though present at the time of demarcation, had not raised any objection with regard to the mode of measurement. The D1W1 has admitted that he had not raised any objection besides completing 70 gatha of his land. The D1W2 stated that the length of the plots of the defendants was not measured completely. The said report dated 30.03.1995 clearly shows the demarcation was carried out in the presence of the parties and through fixed points in the Khasra no.32/1 and Suit No. 2421/08 Page 26 /29 Prem Chand Jain & Ors. v. & Sri Ram & Ors.
Khasra no.32/10/2. There is no manifest error in the measurement of the suit land.
52. Along with the written arguments, the defendants have submitted a fresh demarcation report dated 08.11.2006. The defendants had never informed the court about the said demarcation. They have filed a complaint under Section 133 Cr.P.C. against Sh. Devender Joshi S/o Sh. Om Prakash, Sh. Anil S/o Sh. Maha Singh and Sh. Dilbagh Sing S/o Sh. Hukam Singh alleging therein that they have constructed their houses on the phirni and the land of the defendants. It is pertinent to mention that the suit land is under the protection of this Court. The defendants have never informed the Court with regard to encroachment over the suit land/phirni land by any person at any time. The complaint under Section 133 Cr.P.C. and the report were never produced before the Court nor proved in evidence. In the said complaint, the defendants alleging encroachment by the said persons over the phirni whereas in this suit, D1W1 admitted that the said houses were constructed before 50 years.
53. The defendants have always denied the existence of phirni towards east side of their land in Khasra no.32/15/1 but surprisingly in the para no.2 of their complaint, they have admitted the existence of phirni towards east side of their land and further, the fact that the said land was left during consolidation for public passage. In their cross-examination, the complaint (D1W1) denied that the said phirni was left during consolidation in 1952-53. He was not aware of consolidation in village Palam. The defendants are persons without scruples. They kept on creating documents in order Suit No. 2421/08 Page 27 /29 Prem Chand Jain & Ors. v. & Sri Ram & Ors.
to mis-lead the court and grab the public land. Such documents are not worth consideration.
54. Therefore, on the basis of the demarcation report dated 30.03.1995, aks-sizra Ex.D22W1 and Ex.D22W4 and depositions of D1W3, it is proved that there is a phirni/rasta measuring 24' 9" (3 gatha) towards the east side of the defendants' land which is shown as ABCD in the site plan Ex.PW-1/4. The phirni/rasta has not been encroached by the plaintiff no.3. The phirni/rasta measuring 24' 9" is vacant and connecting the village Palam with the main Najafgarh Road. The said rasta/phirni is part and parcel of Khasra no.182 which is Gaon Sabha land. The defendants have no right to encroach upon the public land. The plaintiff no.1 is the recorded owner of the land comprised in Khasra no.32/16/1 and 32/16/3. The plaintiffs are entitled to use the said phirni to access their land in Khasra no.32/16/1 and 32/16/3. The defendants cannot mis-appropriate the public land/phirni to their exclusive use to the exclusion of the plaintiffs and the residents of the village Palam. The plaintiffs have locus standi to file the suit.
55. The defendants had intended to encroach upon the phirni/rasta in order to close the said passage and merge with their land in Khasra no.32/15/1. The plaintiffs have valid cause of action against the defendants. The plaintiffs are entitled to injunction restraining the defendant no.1 to 21 from raising construction over the land shown as ABCDEF in red colour in the site plan Ex.PW-1/4.
56. Accordingly, the issue no.1 to 4 are decided in favour of the plaintiffs and against the defendants.
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RELIEF:
57. In view of the finding on the issue no.1 and 2, the suit for permanent injunction filed by the plaintiffs is decreed and the defendants are hereby restrained from raising construction at point ABCD on the phirni/public land comprised in Khasra no. 182 and at point CDEF on the plaintiffs' land bearing Khasra no. 32/16/1 and 32/16/3 situated within the Revenue Estate of Village Palam, New Delhi as shown in Red Colour in the site plan Ex.PW-1/4.
58. The plaintiffs shall be entitled to costs of the suit.
59. Decree sheet be prepared accordingly.
Announced in the open court SANJAY SHARMA)
Today on 29.08.2011 SCC-cum-ASCJ-cum
Guardian Judge (West),
Delhi
Suit No. 2421/08 Page 29 /29