G.R. Majithia, J.@mdashDefendants have come up in regular second appeal against the judgment and decree of the first appellate court affirming
on appeal those of the trial Court, whereby the suit of the Plaintiff-Respondents was decreed in respect of Plot No. 118 measuring 222 Sq. Yards
comprised in Khasra No. 18//2 situate in Tafazalpura, tehsil and district Patiala.
2. The facts: Babu Singh, predecessor-in-interest of the Plaintiff-Respondents, vide registered sale deed dated February 12, 1970, purcnased plot
No. 118 measuring 222 Sq. Yards carved out of Khasra No. 18//2 from Bhagat Singh son of Kharak Singh through his General Attorney Ajit
Singh son of Gurbax Singh (vendor of Defendants No. 1 and 2). Possession of the plots is claimed to have been delivered pursuant to the sale. It is
further stated that Gurbax Singh son of Bhagat Singh sold the plot of land comprised in Khasra No-18//3/2 to Defendants No. 1 and 2 (Appellant
No. 1 and Appellants No. 2 to 7 successors-in interest of Sham Lai, Defendant No. 2) vide registered sale-deed dated November 5, 1979. The
defedants had taken possession of the plot in dispute since it was lying vacant and had constructed boundary wall on the existing foundation which
was filled by Babu Singh, the predecessor-in-interest of the Plaintiffs in 1971.
3. Defendants No. 1 and 2 denied the allegations made in the plaint and pleaded that Bhagat Singh was not the owner of the plot in dispute and the
alleged sale deed in favour of the predecessor-in-interest of the plantiffs was a sham transaction. They validly purchased the plot, which was
carved out of Khasra No. 18//3/2, from Gurbax Singh son of Bhagat Singh, for, Rs. 15,000/- and the possession of the said plot was given to
them by the vendor. Defendants No. 1 and 2 had spent Rs. 2,000/- and Rs. 6,000/- respectively on the improvements made.
4. Gurbax Singh vendor, was impleaded as Defendant No. 9 in the suit. He reiterated the stand taken by defedants No. 1 and 2 and pleaded that
he had sold the plot of land measuring. 229 sq yards falling in Khasra No. 18//3/2 to Defendants No. 1 and 2 vide sale deed dated November 5,
1979 for a consideration of Rs. 15,000/- and put them in possession of the same.
5. On the pleadings of the parties, the following issues were framed:
1. Whether the Plaintiffs purchased the plot in dispute from Bhagat Singh vide Registered sale-deed dated 12.2.70 and entered into its possession?
OPP
2. Whether Bhagat Singh had a transferable interest in the plot in dispute? OPP
3. Whether the sale-deed was simply paper transaction as alleged by Defendants Nos. 1 & 2? If so, to what effect? OPD
4. Whether the sale-deed executed bv Gurbax Singh in favour of Defendant Nos. 1 & 2 is illegal arid void? OPP
5. Whether the suit is within limitation? OPP
6. Whether the suit property valued for the purposes of court-fee and jurisdiction? OPP
7. Whether the suit is not maintainable in the present form? OPD
8. Whether Defendant Nos. 1 & 2 are bonafide purchasers for consideration without any notice of fact entitled in the plot in dispute? OPD
9. Whether Defendant No. 1 has spent Rs. 2000/- and Defendant No. 2 has spent Rs. 6000/- on the improvement in the disputed property? If so,
to what effect? OPD
10. Whether the Defendant Nos. 1 and 2 have become the owners of the plot in dispute by adverse possession? OPD
11. Relief.
6. The trial Judge answered issues No. 1 and 2 in favour of the Plaintiffs; issue No. 3 was decided against the Defendants in view of the findings
under issue No. 1 and 2; issue No. 4 was decided in favour of the Defendants 1 and 2 and against the Plaintiffs; issue No. 5 was decided against
the Defendants; issue No. 6 was answered in favour of the Plaintiffs; issue No. 7 was answered against the Defendants; issue No. 8 was decided
against the Defendants holding that the plot purchased by them is not the plot in dispute; issue No. 9 was decided against the Defendants; issue
No. 10 was decided in favour of the Plaintiffs and as a result, the suit of the Plaintiffs was decreed.
7. The contesting defedants challenged the judgment and decree of the trial Judge in first appeal before the District Judge, Patiala, which was
entrusted to Shri S.S. Chahal, Additional District Judge, Patiala for disposal.
8. The first Appellate Court vide its order dated November 28, 1986, appointed Shri Hardhan Singh, Kanoogo Circle Dakala as Local
Commissioner to inspect the spot and after measurement give a report whether the plot in dispute forms part of Khasra No. 18//2. On January 29,
1987, the appointment of Shri Hardhan Singh as Local Commissioner was cancelled and in his place of Shri B.S. Grewal, Naib Tehsildar, Patran
was appointed as Local Commissioner for measuring the site in dispute. On April 29, 1987, and application duly supported by an affidavit was
moved by Ram Murti Goyal, Appellant No. I through his counsel, wherein it was prayed that the appointment of Shri B.S. Grewal as Local
Commissioner be cancelled. It was stated therein that the applicant produced a copy of the Aks Latha, Ex. D. 11, before the Local Commissioner,
but the latter refuse to examine it. The original Aks Latha was not with the Local Commissioner when he visited the spot on April 24, 1987 and
that investigation was not possible unless the original Aks Latha was in possession of the Local Commissioner and he had an opportunity to
examine it. It was also stated in the application that the original Aks Latha was deliberately withheld or destroyed in the Revenue Office by certain
persons in league with the Plaintiffs and the applicant had procured a copy of the Aks Latha when was produced at the trial as Ex. D. 11 and a
copy of the same was sought to be produced before the Local Commissioner, who refused to examine it. This application was not disposed of,
although notice of the same was given to the other party and reply thereto was also filed. The Local Commissioner submitted his report on May 8,
1987. On May 21, 1987, Appellant No. 1 filed objections o the Local Commissioner''s report, wherein it was stated that when the Local
Commissioner carried out demarcation at the spot, he did not have with him the revenue records, namely, Jambandis Field Book, Masavi,
Mutations with Tatimas and Aks Latha (map) which has to be the foundation of the measurements and demarcation according to the Punjab Land
Reveue Act and the rules framed there under and the instructions given in the Punjab and Haryana High Court Rules and Orders, Chapter 1-M,
Volume I. The first Appellate Judge adjourned the case on June I, 1987 for arguments in the main appeal and also on the report of the Local
Commissioner to July 28, 1987. The case was adjourned twice, but the interim orders are illegible and there (sic)on August 24, 1987, the appeal
was dismissed. The appellate Judge noted the objections of the Appellants� counsel and hastened to dispose of the same with the following
observations:
In may opinion, there is no force in the objection raised by learned Counsel for Defendant-Appellant the measurements were taken by the Local
Commissioner after giving notice to the parties and in their presence pacca dhadhas were established by the Local Commissioner after visiting the
spot and thereafter the measurement were taken by him. He has reported that the plot in dispute is a part of K. No. 18//2. There is nothing on the
record to disbelieve this report which has been submitted by the Local Commissioner. Thus from the report of the Local Commissioner, their
remains no doubt that the plot in dispute is a part of K. No. 18/2, which was purchased by Babu Singh predecessor in interest of the Plaintiffs.
These observations clearly indicate that the appellate Judge did not try to comprehend the detailed objections to the Local Commissioner''s report
submitted by Appellant No. 1. He also did not advert to the application dated April 29, 1987 submitted by Appellant No. 1, who is an Advocate.
It was duly supported by his own affidavit praying that the appointment of Shri B.S. Grewal, Naib Tehsildar Patran as Local Commissioner be
cancelled. I have perused the application. Very serious allegations casting doubts about integrity of the Local Commissioner are made therein,
which supported by an affidavit of the Advocate and the appellate Judge for no reasons disclosed in the judgment refused to advert 10 it. To say
the lean, the first appellate Court which is a final Court of fact is expected to act fairly and decided a point of fact after referring to the relevant
evidence produced on the record by the parties to the lis.
9. In the instant case, the only question involved was whether the plot in dispute forms part of Khasra No. 18/3/2 as claimed by the Appellants or
Khasra No. 18/2 as projected by the Plaintiffs-Respondents. This could only be resolved after the demarcation of the disputed plot had been
carried out in accordance with the existing rules framed by the Court and by the Financial Commissioner (Revenue) under the provisions of the
Punjab Revenue Act. Serious objections were taken by Appellant No. 1 to the Local Commissioners'' report and also to his personal demeanour.
It was stated in the objection petition that the important revenue record which is the basis for carrying out the demarcation was not available with
the Local Commissioner when he carried out the demaraction at the spot. It was also stated that the Aks Latha (map), which is the basic document
for carrying out the demarcation., was tampered with in connivance with the revenue officials, but the Defendant Appellant No. 1 had obtained a
copy of the original Aks Latha, whicih was produced at the trial as Ex. D-11 and a copy thereof was also produced before the Local
Commissioner but he refused to look at it. In view of t''-e serious allegations made in the applications dated April 29, 1987 and May 21, 1987, it
was imperative for the appellate Judge to follow the dictum of the Lahore High Court in AIR 1935 501 (Lahore) , wherein it was held thus:
It is conteneded on behalf of the Respondent that there is no provision in the CPC entitling a party, who objects to the report of the Commissioner,
to produce evidence in support of his objections. There is no such express provision no doubt, but Order 26, Rule 14 provides that:
The court after hearing any objection which the parties may make to the report of reports, shall confirm, vary or set aside the same. This implies
that the parties, are entitled to substantiate their objections but in such cases as a rule of practice the Commissioner should first be examined with
reference to the objections, if any, and if it appear from the statement of the Commissioner that there is ground for further enquiry into any matter
which is raised in the objections then the parties should be allowed to produce evidence or the Commissioner directed to amend his report
accordingly. In may opinion, in the present case the Court should have examined the Commissioner to ascertain from him whether he had excluded
from his valuation the improvements, if any, made by the Appellants to the property in dispute. If he had not excluded them, then the Court should
have given opportunity to the Appellant to prove that they had made improvement or should have directed the Commissioner to report whether
any improvements had been made by the Appellants and to submit a report as to their value
10. Order 26, Rule 14, Code of Civil Procedure, entitled a party to the lis to substentiate its objections The objections filed in the instant case by
Defendant/Appellant No. 1 on May 21, 1987 are duly verified by him, who is an Advocate_by profession. Reply was filed by the Plaintiffs to
these objections. The Plaintiffs did not meet the allegations made in the objection petition. 1 hey merely denied the allegations and did specifically
deal with each allegation of fact. If a point of fact is denied it must not be done evasively; otherwise the fact will be deemed to have been admitted,
inference can be made to the following observations of their Lordships of the apex Court in the case reported as Badat and Co. Vs. East India
Trading Co., :
Rules 3, 4 and 5 of Order 6 of CPC form an integrated code dealing with the manner in which allegation of fact in the plaint should be traversed
and the legal consequences flowing from its non-compliance. 1 lie written statement must deal specifically with each allegation of fact in the plaint
and when the Defendant denies any such fact, he must not do so evasively but answer the point of substance. If his denial of a tact is no specific
but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary.
The Plaintiffs accepted the report of the Local Commissioner but objections were filed by defendaiit Appellant No. 1. Under these circumstance, it
would have been apt for the appellate Judge to examine the Local Commissioner with regard to the matter touching his report to elicit the truth.
The appellate Judge disposed of the appeal in a most perfunctory manner. The report of the Local Commissioner is set aside in view of the
allegations made in the application dated April 29, 1987 and the objection to the report of the Local Commissioner. Since the only point in dispute
relates to the demarcation of the plot in dispute and which can only be decided on the basis of the report of the Local Commissioner who has to
carry out the demarcation in accordance with the instructions contained in the Punjab and Haryana High Court Rules and Orders, Volume I,
referred to in the earlier part of this judgment, I am left with no other alternative but to set aside the judgment and decree of the first appellate
Court and to remit the case to the District Judge, Patiala. He shall appoint a responsible revenue officer/official as Local Commissioner, whose
impartiality is beyond doubt, to demarcate the site in dispute and on receipt of the report permit the parties, to take such objections, if any, to the
report of the Local Commissioner. Thereafter he shall decide the appeal on merits afresh within six month from the date of receipt of a copy of this
judgment Copy of this judgment be supplied to the parties within a week of the applications moved by them in this behalf.