Ram Prasad and Ors. vs Lakshmi Narain Misra and another

R.K. Mahajan, J.—This appeal against the judgment and decree of Shri J.B. Singh, Vth Additional District Judge, Allahabad dated 1021984 by virtue of which he confirmed the judgment and decree dated 2011983 passed in Original Suit No. 286 of 1980. The lower court granted a decree regarding demolition of construction in dispute. This appeal has arisen from the following facts.

One Laxmi Narain Misra purchased a piece of land out of plot No. 175/2 measuring 11 Dhur owned by one Raj Bahadur through saledeed registered on 481975. There was already construction in an area of 4 "Dhur." Plaintiffrespondent also started new construction i.e. new house in an area measuring 6 "Dhur". He has left an area of one Dhur for the purpose of lane. If also appears that Shri Rai Bahadur also sold a piece of land out of this plot on 3131979 to Smt. Aranti Devi. She alsa subsequently purchased a piece of land lying in the west of the said house from the same owner on 31121979. The total area as described in the plaint and denoted by Khasra No. 175/1 is 8 Biswa.

Admittedly Smt. Aranti Devi also became cosharer of the respective areas purchased with the plaintiff with boundaries described in their saledeed. The grievance of the plaintiff respondent is that the defendantAppellant started interfering in the possession and subsequently raised a construction over the disputed portion of the plaintiffappellants'' land. During the pendency of the suit the plaintiffs claimed a relief regarding demolition and restoring of the encroached portion to their original possession as the defendant his raised a construction in the plaintiff land. The plea of the defendant was that the defendant has purchased the house towards the north of the land covered by the plaintiff s saledeed or that from Raj Bahadur, and defendant raised a construction before the filing of the suit. Both the trial court and appellate court found that the defendantsappellants have trespassed over the land which is in dispute by way of construction and ordered for demolition. It may be pointed out that the local Commissioner, who was Advocate was also appointed and he also found encroachment. I am informed that the Advocates are empanelled as local Commissioner and they get also training of Surveyor before they are entrusted to this job in the State of U.P.

The appellate court arrived to the following finding:

"Firstly, a calculation reveals and discloses also that the land in dispute goes to complete the entire area of 11 Dhur from the plot No. 175/1 area 8 Biswa as available in the saledeed dated 4th August, 1975.

Secondly, the claim of the plaintiffrespondent will prevail because his saledeed from the same common owner is earlier and the same was acted upon also.

Thirdly, the defendantappellant No. 2 will get the land in plot No. 175/1 through her both the saledeeds dated 31st of March, 1979 and 31st of December, 1979 after adjusting the land to the, plaintiffrespondent only."

The trial court was also of the view that Smt. Aranti Devi or her husband has not appeared in support of the averment and which was a very much material to throw a light on the case. This is how the present Second Appeal has been filed.

The following questions of law had been framed at the time of admission of the present Second Appeal:

"1. Whether the entire area of 11 Dhur land purchased by the plaintiff through the saledeed is in possession of the plaintiff and the finding of the courts below are erroneous due to miscalculation of the area in the plaintiff''s possession through the sale deed?

Whether the area within the boundary mentioned in the saledeed and in the posion of the plaintiff shall prevail as against the misdescription of length and breath in the saledeed?"

Learned counsel for the appellants has submitted that the wrong measurement has been done and as such the court below ought to have sent the Surveyor Commissioner for local inspection and should have checked the area purchased by the parties after checking and cross checking the fixed points given in the map.

During the course of arguments the learned counsel for the appellant could not bring to my notice whether objection to the report of the local Commissioner has been filed under Order XXVI, Rule 10 C.P.C. which is quoted with an advantage:

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

(3) Commissioner may be examined in person Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit."

Under Order XXVI Rule, 10 C.P.C. the Commissioner may be examined to demolish his measurement after filing objections. In case the objections are filed he is to be examined so that the defects may be pointed out in his measurement. The present report is not cryptic as it shows the details of measurement as well as manner in which it has been carried out. There was no other course left to the court than to accept it and as such the argument of the learned counsel for the appellant that the report is fake is of no avail.

I have also perused the report of the Commissioner. It is a detailed report with the map showing the location of the plots and the report of the Commissioner was relied upon regarding the ownership of the land in dispute after comparing the maps and sale deeds.

Learned counsel for the respondents submitted that the findings have become finding of fact and they cannot be assailed. I find no inherent procedural defect or legal defect in the appreciation of the evidence and the findings are based on reasonings and evidence and are not liable to be disturbed. The plea of the learned counsel for the appellants that another local Commissioner may be appointed'' is not tenable as there has to be end of litigation and no good cause has been made to disturb the findings. It is also not tenable as description of the boundaries has been given in the saledeed. The non appearance of Smt. Aranti Devi invites an adverse possession under Section 114 (g) of the Evidence Act.

I, therefore, for the reasons recorded above find no force in the appeal and dismiss the same.