Summary
Defects in a Local Commissioner’s demarcation report did not justify dismissing an encroachment suit outright. Where a final earlier order required investigation through a commission, noncompliance with demarcation instructions called for a fresh commission or remand. The High Court also overlooked other oral and documentary evidence. All decrees were set aside and the suit restored for a fresh decision after proper local investigation.
Issues
- Whether deficiencies in a court-appointed commissioner’s demarcation justified dismissal of the entire suit rather than further investigation.
Provisions considered
- Order XXVI Rule 10(3), Code of Civil Procedure, 1908Dissatisfaction with the commissioner’s proceedings permitted further inquiry; the irregular report required fresh investigation rather than outright dismissal of the suit. (¶ 16–18)
Held
- The earlier order requiring additional findings based on a commissioner’s report had attained finality. A flawed demarcation report did not nullify that order or itself defeat the suit; the appropriate course was a fresh commission or remand. (¶ 15–17)
- The first appellate court had relied on oral and documentary evidence as well as the report. The High Court overlooked that other evidence when treating the rejected report as leaving no proof of encroachment. (¶¶ 14, 17)
- A fresh commission, opportunity to object to its report and reconsideration of the original and additional issues were necessary for effectual adjudication. The Supreme Court did not finally decide encroachment or restore the plaintiffs’ possession decree. (¶ 18–20)
Result
Appeal allowed; High Court and subordinate-court decrees set aside and suit restored to the trial court. Parties to appear on 5 March 2019; fresh commission to issue immediately and suit to be decided expeditiously, preferably within three months of appearance. Costs to follow the final decision.