Himachal Pradesh High Court
Raj Pal And Another vs Janak Raj on 28 August, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.681 of 2008.
.
Date of decision: 28.08.2019.
Anant Ram(deceased) through LRs:
Raj Pal and another .....Appellants/plaintiff.
Versus
Janak Raj .....Respondent/Defendant.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? 1 . No
For the Appellants
r : Mr. Rajneesh K. Lal, Advocate.
For the Respondent : Mr. N.K. Thakur, Senior Advocate
with Mr. Divya Raj Singh, Advocate.
Tarlok Singh Chauhan, Judge (Oral)
Even though this appeal already stands admitted on the substantial questions of law that were formulated on 18.12.2008, however, while hearing arguments, it transpired that the report of the Local Commissioner Ex.OW/A has not at all been dealt with by the learned first appellate Court. Even, the learned trial Court discarded the said report by simply observing as under:
"14. Sh. Ram Rattan, retired C.O. was appointed as L.C. in order to find out encroachment by the defendant over portion KLMN of the suit property. He has submitted his report on 4/12/1991 which is detailed one. He was examined as O.W.1. In the cross- examination, he has deposed that he has not specified the numbers of super-structure. The report of the L.C. is of no help to 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 29/09/2019 02:46:47 :::HCHP 2 the plaintiff as the plaintiff has failed to prove his title and possession over the suit property prior to the institution of the .
suit."
2. It is well settled law that the learned first appellate Court continues to be the final Court of fact and law and non-consideration of an important piece of evidence i.e. report of the Local Commissioner vitiates the judgment and decree so passed by the learned first appellate Court.
3. Accordingly, the appeal is allowed and the matter is remanded back to the learned first appellate Court for decision afresh.
4. The parties through their counsel(s) are directed to appear before the learned first appellate Court on 23.09.2019.
5. The learned first appellate Court shall make an endeavour to decide the same as expeditiously as possible and in no event later than 31st December, 2019.
6. Pending application, if any, also stands disposed of.
28th August, 2019 (Tarlok Singh Chauhan)
(krt) Judge
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