P.C. Misra, J.
1. Defendants 1 to 3 have preferred this appeal against the confirming judgment of the learned Subordinate Judge, Aska. in a suit for recovery of possession, mesne profits and damages.
2. The plaintiff's case, briefly stated, is that he purchased Ac. 0.24 cents of land in Survey No. 169 from one Dasa Naik and Ac. 0.26 cents of land in Survey No. 254 from one Ulla Sahu and others under two separate registered sale deeds dated 19-10-65 and 9-5-69, respectively Exts. 2 and 3. The plaintiff has alleged that after purchasing the said land he was in peaceful possession thereof till the month of May, 1970 when the defendants encroached upon different portions of these lands by removing the intervening ridges. According to him, defendant 1 has encroached upon Ac. 0.04 cents of land from the south-east portion of Survey No. 169 and defendant 2 has encroached upon Ac. 0.02 cents from the north of the said plot and defendants 2 and 3 together have encroached upon Ac. 0.02 cents of land from out of Survey No. 254 while defendant 4 has encroached upon Ac. 0.02 cents of land from the north of the said plot. As the defendants did not vacate the suit lands in spite of demands, the plaintiff got the encroached portions demarcated by a Government Amin and had to file this suit for the reliefs stated above.
3. Defendant 4 did not contest the suit and was set ex parte. Defendants 1 to 3 contested the suit by filing a joint written statement. Their case is that the suit lands appertain to their plot and not to the plaintiffs plots as alleged by the plaintiff. They have denied the plaintiff's allegation of trespass and encroachment.
4. The learned trial Court after discussing the evidence adduced on behalf of both the parties decreed the suit on contest against defendants 1 to 3 with costs and ex parte against defendant 4 and directed the defendants to deliver possession of the suit lands to the plaintiff.
5. Aggrieved by the decision of the trial Court, defendants 1 to 3 preferred Title Appeal No, 38 of 1976 before the Subordinate Judge, Aska, and that appeal having been dismissed, they have come up in this second appeal.
6. The main dispute between the parties In the suit is as to whether the suit lands measuring Ac. 0.10 cents appertain to the plaintiff's plots or to the defendant's plot as alleged in their respective pleadings.
7. In the trial Court, a survey-knowing Commissioner was deputed at the instance of the plaintiff. The Commissioner submitted his report on 30-3-76 and the Court called upon the parties to file objections, if any, to the Commissioner's report by 8-4-76. But neither of the parties chose to file any objection and by Order No. 64 dated 8-4-76 the Court accepted the Commissioner's report.
According to the Commissioner, there has been encroachment by the defendants from the plaintiff's plots to the extent of Ac, 0.05 cents and not Ac. 0.10 cents as alleged by the plaintiff. Therefore, the report of the Commissioner does not support the plaintiffs case in its entirety. At the trial, the plaintiff, however, did not rely upon the said report and examined P. W. 1, an Amin in the Tahasi] Office at Digapahandy. P. W. 1 has deposed that he was deputed by the Tahasildar, Digapahandy to get the suit lands demarcated in pursuance of an application filed by the plaintiff before the Taiha-sildar. Exhibit 5 is the map prepared by P. W. 1 in which he has indicated the encroached portions in red ink. Both the Courts below have relied upon the evidence of P. W. 1 and Ext. 5, the map prepared by him, and have come to the conclusion that there has been encroachment of Ac. 0.10 cents of land from out of the plaintiff's plait, The Commissioner deputed by the trial Court has not been examined in the suit. Both the Courts have not attached much weight to his report Ext. 6 and the map prepared by him (Ext. 7) on the ground that he has not been examined in Court and has not stood the test of cross-examination. The appellants in this appeal have assailed this finding of the Courts below on the ground that the evidence of P. W. ] and the map prepared by him (Ext. 5) cannot be relied upon in preference to Exts. 6 and 7 which have been accepted as legal evidence in the suit.
There can be no dispute as to the legal proposition that the report of a survey-knowing Commissioner deputed under Order 26, Civil P. C., is per se evidence in the suit. Order 26, Rule 9; C. P. C. provides that the Court may issue a commission for local investigation if it deems it to be requisite or proper for the purpose of elucidating any matter in dispute. Sub-rule (1) of Rule 10 of Order 26, C. P. C. envisages that the report of the Commissioner should be reduced to writing and submitted to the Court under his signature. Sub-Rule (2) of Rule 10 of Order 26, C. P. C. is to the effect that the report of the Commissioner shall be evidence in the suit and shall form part of the record. Therefore, the report of the survey-making Commissioner deputed by the Court in this case became a part of the record as well us evidence in the suit as soon as the same was submitted by the Commissioner. Sub-rule (2) of Rule 10 of Order 26. C. P. C., also provides that 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. Neither of the parties took recourse to this provision of law in order to assail the report of the Commissioner. The defendants, as it appears from the records of the trial Court, made an application to recall the order of the Court accepting the Commissioner's report, but that application was heard and rejected by the Court. Thereafter, the defendants filed another application for deputing another Commissioner for the purpose of measurement. That application was also rejected on the ground that there was already the report of a survey-knowing Commissioner which had been accepted, and unless that report was set aside, a fresh Commissioner could not be deputed. Therefore, the Commissioner's report and the map drawn by him, marked in the suit as Exts. 6 and 7 respectively, are legal evidence in the suit and deserve consideration.
8. Learned counsel for the appellants cited the decisions reported in AIR 1962 Pat 273 (Ramautar Gope v. Sheonandan Mistri); AIR 1976 Delhi 175 (Harbhajan v. Singh v. Smt. Shakuntala Devi Sharma); and AIR 1973 Andh Pra 168 (Vemusetti Appayamma v. Lakshrnan Sahu) in support of his contention that examination of the Commissioner in Court is not necessary and without his examination his report should be accepted as evidence in the suit This proposition of law is perfectly sound in view of the unambiguous language of Order 26, Rule 10 (2), C. P. C. As already stated, the report of the Commissioner became evidence in the suit and formed part of the record as soon as it was filed. Since no objection was taken against the Commissioner's report, it was accepted by the Court. In a case where the Court is dissatisfied with the proceedings of the Commissioner for some reason or other, it may direct such further enquiry to be made as it shall deem fit. That is what Sub-rule (3) of Rule 10 of Order 26, C. P. C., provides. Until the Court considered the application of the defendants for deputing a fresh Commissioner, there was no occasion for the Court to be dissatisfied with the report of the Commissioner which had already formed part of the record Thus, the question of exercise of jurisdiction under Sub-rule (3) of Rule 10 of Order 26, C. P. C. did not at all arise at that time.
9. Both the Courts below should have considered the evidentiary value of Exts. 6 and 7 even though the Commissioner was not examined in Court by either of the parties. The Courts below have relied upon the evidence of P. W. 1 and Ext. 5, the map prepared by him, for reaching the conclusion that the defendants have encroached upon Ac. 0.10 cents of plaintiff's lands as alleged by the plaintiff. I have gone through the evidence of P. W. 1 and perused Ext. 5 in order to find out whether they are sufficient for supporting the concurrent finding of the Courts below that the defendants have encroached upon the suit lands. In this case, no field book has been filed in support of the measurement by P. W. 1. Therefore, the mode of measurement adopted by P. W. 1 and the details thereof are not known. P. W. 1 has admitted in cross-examination that he had submitted his report along with Ext. 5 before the Tahsildar. But the said report has not been brought on record. Ext. 5 does not give the details of measurement. The chain lines have not been indicated therein. In his evidence P. W- 1 does not give the details of his measurement All that he says is that the plaintiff has been in possession of less lands than what he had purchased. It is possible that the plaintiff might be possessing less lands on account of encroachments made by the neighbouring land owners. Therefore, Ext. 5 and the evidence of P. W. 1 do not estabish a case of encroachment by the defendants.
10. Exhibits 6 and 7, when critically examined, also do not satisfy the tests to form the basis of a categorical finding. The Field Book in support of the measurement has not been submitted by the Commissioner along with his report Ext. 6. Exhibit 7, the map drawn by the Commissioner does not indicate the chain lines or the fixed points from where the measurement was started. The plaintiff; has indicated in the plaint the extent of encroachment by each of the defendants. Exhibit 6, the report of the Commissioner, does not indicate as to which of the defendants has encroached upon what extent of the suit lands though according to the Commissioner the total encroachment is Ac. 0.05 cents. In view of the above infirmities, Exts. 6 and 7 are also not acceptable for recording a finding of encroachment by the defendants.
11. Learned counsel for the appellants relied upon the decision in the case of Chandan Mull Indra Kumar v. Chiman Lal Girdfoar Das Parekh, AIR 1940 PC 3, in support of the proposition that a Commissoner's report should not be overlooked by the Court unless there are materials to outweigh the same. Their Lordships in the said decision came 'to the conclusion that the Commissioner made a careful survey and embodied the result of such survey in a map prepared to scale. On the map the Commissioner indicated the Injunction pillars and was satisfied that the same corresponds with the two survey situations in his own map. It is for that reason that their Lordships were of the view that interference with the result of a long and careful local investigation except upon clearly defined and sufficient grounds is to be deprecated.
In this case, the Commissioner deputed by the Court has not indicated the fixed points from where he started the measurement. He has not furnished any Field Book showing the details of his measurement. Therefore, Exts, 6 and 7 cannot be said to be the result of a careful and laborious execution of his task as a Commissioner. For the reasons indicated above, Exts. 6 and 7 cannot be relied upon in this case.
12. Law is equally well settled that the Commissioner's report, even though it is not challenged by any of the parties, is not binding on the Court. When parties file no objection to the Commissioner's report, the Court rightly accepts the report; but such acceptance by itself does not preclude the parties from challenging the same by cross-examining the Commissioner at the trial or by examining witnesses and proving documents to nullify the effect of the Commissioner's report or to place materials from the report itself to prove that the same cannot be relied upon.
13. In view of the above position, it would be fair in the interest of justice to remand the matter to the trial Court for deputing a fresh survey-knowing Commissioner for local investigation and to report as to whether the suit lands or any portion thereof appertain to the plaintiff's plots or to that of the defendants. The Commissioner shall submit his Field Book and the spot map indicating the chain lines complying with the rules of survey and measurement. He shall also indicate in his report and the map encroachments, if any, made by the respective parties. Parties shall be at liberty to challenge the Commissioner's report, but they shall not be permitted to lead fresh evidence touching upon other issues in the suit.
14. In the result, the appeal is allowed, the judgments of the Courts below are set aside and the matter is remanded to the trial Court for fresh disposal in accordance with law and keeping in view the observations made above.
Costs would abide the result.
15. The suit is of the year 1972. The trial Court is directed to dispose of the suit within six months from the date of receipt of the records and report compliance.
The records be sent back immediately.