Case Note & Summary
The matter arose from a civil dispute over land encroachment. The petitioner, who was the defendant in the suit, claimed an old existing building on the disputed site, allegedly purchased through a registered sale deed. The respondent/plaintiff alleged encroachment. Earlier, the measurements were not taken properly by Tehsildar and Revenue Patwari. The High Court single Judge, with consent of parties, appointed Tehsildar Kasauli as Local Commissioner on 20 May 1996 to measure the site and submit a detailed report. The parties undertook to abide by the report and not file objections. The Commissioner's report, marked Ex.C-1, revealed that the defendant could not substantiate the claim of an old building and had encroached upon an area of 0-4 Biswas belonging to the plaintiff. The report included a plan and statements of parties. The High Court relied on the report and held that the appellate court's view was not vitiated by illegality. Aggrieved, the defendant/petitioner filed a special leave petition before the Supreme Court. The Supreme Court observed that the finding was based on the Commissioner's report and was a factual position. It declined to go into the matter and dismissed the special leave petition.
Headnote
A) Civil Procedure - Local Commissioner - Appointment and Report - Consent Order - Code of Civil Procedure, 1908, Order 26 Rule 9 - The High Court found earlier measurements not taken per procedure, appointed a fresh Local Commissioner with parties' consent on 20 May 1996, and the parties undertook to abide by the report without objections; the report (Ex.C-1) showed the defendant encroached 0-4 Biswas on plaintiff's land; the Supreme Court declined to interfere with the concurrent factual finding based on the consent report and dismissed the special leave petition. Held that when parties consent to a Local Commissioner's report, courts may rely on it for factual determination (Paras 1-2).
Issue of Consideration
Whether the High Court correctly relied on the Local Commissioner's report (Ex.C-1) to uphold the finding of encroachment, and whether the special leave petition raises any substantial question of law.
Final Decision
The special leave petition was dismissed. The Supreme Court declined to interfere with the factual finding based on the consent Local Commissioner's report.
Law Points
- Local Commissioner's report accepted by consent binds parties
- concurrent factual findings not interfered under Article 136
- measurements done according to procedure
Case Details
1996 LawText (SC) (12) 48
K. Ramaswamy, G.T. Nanavati
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Nature of Litigation
Civil dispute over land encroachment concerning measurement of disputed site and claim of old building
Remedy Sought
Petitioner sought special leave to appeal against High Court judgment confirming the appellate court's finding of encroachment
Filing Reason
High Court relied on the Local Commissioner's report to uphold the finding of encroachment, which the petitioner challenged before the Supreme Court
Previous Decisions
The appellate court had found that the defendant encroached upon the plaintiff's land; the High Court upheld that finding after considering the report of the Local Commissioner appointed with parties' consent, marking it Ex.C-1
Issues
Whether the High Court was justified in relying on the Local Commissioner's report to uphold the appellate court's finding of encroachment
Whether the special leave petition raised any substantial question of law requiring interference
Submissions/Arguments
The petitioner contended that the measurements were not taken in accordance with the well-settled rules of procedure, leading to appointment of a fresh Local Commissioner
The parties consented to the fresh Local Commissioner and undertook to abide by his report and not file objections, which formed the basis of the High Court's decision
The respondent/plaintiff relied on the Commissioner's report which showed encroachment of 0-4 Biswas
Ratio Decidendi
When parties consent to the appointment of a Local Commissioner and agree to abide by the report without objections, the court may rely on such report for factual findings. The Supreme Court under Article 136 does not ordinarily interfere with concurrent factual findings based on such consent report.
Judgment Excerpts
When the matter was argued before me, I was of the opinion that the measurements had not been taken by the Tehsildar and the Revenue Patwari in accordance with the well set rules of procedure in this behalf. Consequently, with the consent of the parties, I passed an order appointing another Local Commissioner i.e. Tehsildar Kasauli and issued certain directions to him to go to the spot and measure the site in dispute and to submit a report in detail.
On measurements, it has been found that the defendant has encroached upon an area belonging to the plaintiff to the extent of 0-4 Biswas.
The special leave petition is dismissed.
Procedural History
The High Court single Judge noted that earlier measurements by Tehsildar and Revenue Patwari were not done according to procedure, so with consent of parties, appointed Tehsildar Kasauli as Local Commissioner on 20 May 1996 to measure the site and submit a report. The parties undertook to abide by the report and not file objections. The report, marked Ex.C-1, showed that the defendant had encroached 0-4 Biswas on plaintiff's land. The High Court relied on this report and held that the appellate court's view was not vitiated by any illegality. The Supreme Court dismissed the special leave petition, finding it a factual matter not requiring interference.
