Onkar Prasad and Another vs Manju Devi and Others

Dhirendra Mishra, J.

This writ petition is directed against the order dated 10th December, 1998 passed in Civil Suit No. 26-A/93 by learned 4th Civil Judge, Class-1, Bilaspur whereby objection against the report submitted by the Commissioner appointed under Order 26 Rule 9 of the CPC has been rejected. The petitioners had earlier filed Civil Revision No. 24/99 against the above order. In the said Civil Revision, proceedings in Civil Suit No. 26-A/93 were stayed vide order dated 11.01.1999 (Annexure-P/10), however, revision was dismissed on 30th June, 2005 with liberty to have recourse to other legal remedies and accordingly, the instant petition has been filed.

Since there was dispute with respect to identity of the disputed land between the parties, the trial Court appointed Tehsildar, Bilaspur as Commissioner for local investigation under Order 26 Rule 9 of the CPC (Annexure-P/3) and directed the Collector to submit its report (Annexure-P/4).

The grievance of the petitioners is that though Tehsildar was appointed as Commissioner for local investigation, he did not make any investigation and Revenue Inspector submitted his report dated 13.05.1998 (Annexure-P/ 5) to the Tehsildar. The petitioners raised objection against the said report on the ground that the report has not been submitted by the appointed Commissioner after himself conducting local investigation and the report was submitted by unauthorized person i.e. Revenue Inspector. Investigation for demarcation was done behind the back of the petitioners without any notice to the petitioners. Several other grounds were raised in the objections, such as demarcation was done without fixing any permanent mark. Learned trial Court, by the impugned order, rejected the objection with an observation that though Tehsildar, Bilaspur was appointed as Commissioner and was directed to conduct demarcation and Tehsildar got the demarcation executed through revenue inspector and thereafter report has been submitted in the Court, which is in accordance with law.

Learned counsel for the petitioners submitted that the Commissioner''s report is a valuable piece of evidence. The appointed Commissioner after such local inspection is required to return the report to the Court and evidence taken by him is to be evidence in the suit and the same form part of the record and any of the parties to the suit with the permission of the Court may examine the Commissioner personally in open Court with respect to the report submitted by him.

On the other hand, Shri Shreekumar Agrawal, learned senior counsel contended that the revenue inspector is equally empowered u/s 129 of the Chhattisgarh Land Revenue Code, 1959 for demarcation of the land, therefore, the demarcation report submitted by the revenue inspector cannot be rejected solely on the ground that he was not appointed as Commissioner by the concerned Civil Court. So far as other objection that demarcation was done without notice to the petitioners behind their back is concerned the trial Court may be directed to decide the above objection of the petitioners afresh on the basis of report submitted by the Commissioner before it.

I have heard learned counsel for the parties.

Tehsildar was appointed as Commissioner for local investigation by learned trial Court. The order of appointment of the Commissioner was forwarded to the Collector as per Chhattisgarh Commissions For Local Investigation Rules, 1962 (for short ''the Rules, 1962), however, the revenue inspector has conducted local investigation and submitted his report to the Tehsildar and the same has also been filed in the Court.

Order 26 Rule 10(2) provides for report and depositions to be evidence in suit and examination of Commissioner in person, which is reproduced as under:

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 his report, or as to the manner in which he has made the investigation.

Part-II of the Rules, 1962, framed in exercise of powers conferred by proviso to Rule 9 Order 26 of the First Schedule to the Code of Civil Procedure, 1908, deals with revenue officer to whom commission may be issued. Rule 4 & 5 of the above rules reads thus :

A commission to a Revenue Officer shall be issued through the Collector of the district, to whom he is subordinate and the Collector shall endorse the commission to the Revenue Officer named to make the necessary local investigation.

If the Collector is of opinion that the Revenue Officer cannot, with due regard to Government interest, be called upon to make such local investigation, he shall endorse his opinion to that effect on the commission and return it to the court which issued it; and his opinion shall be accepted as conclusively determining that the services of the Revenue Officer in question are not available.

In the instant case, since the appointed Commissioner, i.e., Tehsildar has not conducted local investigation and the Revenue Inspector has submitted demarcation report after local investigation the appointed Commissioner i.e., Tehsildar cannot be summoned as a witness at the instances of the respective parties as provided under Order 26 Rule 10(2) of the CPC. In view of clear and specific provisions and Rule 4 & 5 of the above Rules, if there was any difficulty with the Revenue Officer, who was appointed as Commissioner for carrying out local investigation, the proper course for such Revenue Officer was to apprise the same to the Collector, who could return the commission with his opinion in accordance with Rule 5 of the Rules, 1962. The Tehsildar could not entrust local investigation to the Revenue Inspector without due permission from the Court.

Apart from the above objection, learned trial Court has also not considered other objections raised by the petitioners against the report of the Commissioner, which is evident from the objection submitted by the petitioners (Annexure-P/6) and the impugned order or Annexure P/8.

For the aforesaid reasons the petition is allowed and the order of Annexure-P/8 is set aside. The trial Court is directed to decide the objection of the petitioners against the report of the Commissioner in the light of observations made by this Court in this order after affording opportunity of hearing to the parties, in accordance with law.