D.N. Roy, J.
1. This second appeal is by the defendants who are the sons of one Behari Lal. It arises out of a suit brought by the Municipal Board of Aligarh for the removal of certain encroachments alleged to have been made by the defendants over rasta plot bearing No. 648 situate in mohalla Nuner Darwaza, adjacent to the west of which is defendant's bagichi situate in plot No. 647. The plaintiff came upon the allegation that in December, 1945, the defendants broke a portion of the eastern compound wall of their bagichi and made an encroachment over the rasta land delienated in red in the map annexed to the plaint.
2. The defendant resisted the suit on the ground that no encroachment had been made over the rasta land and that the portion of the land in dispute forms part of their bagichi which they had obtained on lease from one Raja Prem Pratap Singh. The trial Court issued a commission to one Sri Bankey Lal, a practising lawyer, to find out upon inspection and measurement Whether an encroachment exists. Sri Bankey Lal, it may be stated, happened also to be a Municipal Commissioner, and so was the defendant. Sri. Bankey Lal inspected the place in the presence of the parties and their counsel, took measurements of the locality, prepared a site-plan on scale and also a report wherein he indicated that the land covered by the defendants patta was complete by itself and exclusive of the disputed piece of land; that the disputed piece of land formed part of a rasta; that an encroachment had been made over that piece of land by the defendants who had broken up part of their eastern compound wall.
Objection was taken against the report and the map prepared by the Commissioner and one of the grounds was that the Commissioner appointed in the case was a Municipal Commissioner and therefore he was interested in the matter and was not fit to act as Commissioner for taking measurements. The objections were overruled. The trial Court also relied upon the other oral and documentary evidence that was produced in the case and came to the conclusion that an encroachment has been made over rasta plot No. 648 and the trial Court accordingly decreed the suit.
3. The defendants preferred an appeal; but it was dismissed by the lower appellate Court. Against the judgment and decree of the lower appellate Court, this second appeal was preferred by the defendants. It came up before a learned single Judge of this Court. The point was raised before him that the appointment of the Commissioner in the case amounted to making the Municipal Board a Judge in its own cause & consequently the report & map prepared by the Commissioner were a nullity. The learned single Judge observed that the principle cannot be stretched to this extent that a Municipal Commissioner or a member of a Corporation who is also a vakil cannot be appointed a Commissioner, even though there was no objection at the time of the appointment The learned single Judge, however, felt that as the point raised was one of importance, the matter may be decided by, a Division, Bench and that is how the matter has come up before us.
4. The broad question that a Municipal Commissioner or member of a Corporation who is also a vakil cannot be appointed as a Commissioner in a case brought by the Municipal Board, even though no objection was taken at the time of his appointment, can in our opinion admit of only one answer and that is that he can be appointed as such. What happened in this particular case was this. When the application for the issue of a commission was made before the trial Court, the trial Court consulted its own list of Commissioners and from out of that panel of Commissioners, the chance fell to the lot of Sri Bankey Lal to act as Commissioner in this case.
At the time of that appointment no objection was raised by the defendants. The defendant No. 1 himself was a Municipal Commissioner and he was cognisant of the fact that the Commissioner who was being appointed in the case and who was a vakil was also a Municipal Commissioner. If, therefore, he did not object to the appointment at the time of the appointment, he cannot be heard to say that merely because the report of the Commissioner goes against him, which upon scrutiny has been found by both the Courts below as correct, that the report and the map should be thrown overboard on account of any alleged bias.
5. There is abundant evidence on the record to prove that the land encroached upon forms part of plot No. 648 which is a rasta plot recorded as such in the Municipal papers and the management of which vests in the Municipal Board. The fact was proved by Mohsin Raza Khan the Municipal Inspector, who was produced as a witness on behalf of the plaintiff and whose evidence on the point was supported by the extracts in the registers. The fact that to the east of the defendants' bagichi there is rasta land, was admitted by Paras Ram defendant himself when he came into the witness-box. It appears that in the year 1928 the defendants' father, who had taken patta of plot No. 647 from the Raza, applied to the Municipal Board to grant permission to compound that piece of land and to make certain constructions on it.
Copy of that application was Ex. 2 on the record. Along with that application ho submitted a map which is Ex. 3. In that map it was clearly specified that the disputed piece of land existed as rasta. Permission had been given to the defendant's father to make the construction. The eastern wall of that compound was in a straight line. The wall which was constructed ore the basis of that permission was built in a straight line, part of it was demolished In the year 1945 and the encroachment was made at that time over plot No. 648 which is adjacent to it. In 1937 Chheda Lal the brother of the defendant made an application to the Municipal Board praying that the disputed piece of land may either be sold to him or given to him on patta. This application is Ex. 6 on the record.
Along with that application he submitted a Ex. 7, which too indicates that this disputed piece of land was in the possession of the Municipal Board and formed part of rasta plot No. 648. Chheda Lal made another attempt to get that land from the Board, but he was unsuccessful. It appears that after two unsuccessful attempts had been made to get this land by sale or lease, the defendants broke open part of their eastern wall and extended their jurisdiction over the rasta land. The Commissioner compared those measurements with the measurements as existed in the Settlement Survey Plans of 1903 and 1344 Fasli equivalent to 1936, and he found that the dimensions of the bagichi tallied. The Commissioner further found that the disputed piece of land does not form part of the bagichi which exists in plot No. 647, but it forms part of plot No. 648 itself.
If we refer to the evidence of the defendantwhen he was in the witness-box, it would beabundantly clear that the defendant did not layclaim to any portion of land in excess of whathad been obtained by his father under the lease.If what was obtained under the lease is completeat the spot and it lies within the four corners ofthe compound wall that had been constructed bythe defendants' father some time in the year 1928,it would be evident that when the defendantsbroke open part of the eastern compound wall,they did so with the object of making an encroachment over the adjacent piece of land bearing No. 648. Consequently we are clearly of opinion that the Courts below were right in comingto the conclusion that the encroachment has beenmade over rasta plot No. 648 which is a publicway and that the plaintiff was entitled to relief.
6. There is no force in this second appealand it is accordingly dismissed with costs.