Mohd. Shamim, J.

1. This appeal has arisen out of a judgment and decree passed by1eamed Additional District Judge, Tis Hazari, Delhil dated December 18,1975 whereby he set aside the judgment and decree dated October 20, 1974 passed by a Sub-Judge dismissing suit of the plaintiff/respondent (hereinafter referred to as the respondent for the sake of brevity) and decreeing the suit of the respondent for recovery of possession to the extent of 4.4 biswas of land as shown in the report of the Local Commissioner submitted on September 13, 1970.

2. Brief facts which are necessary in order to facilitate the disposal of the present appeal are being reproduced below. The plaintiff/respondent filed a suit in the Court of the Senior Sub-Judge which was registered as Suit No. 1561/72 on the allegations that he was the owner and colomiser of a colony known as Raja Garden Colony situated in the revenue estate of Basai Darapur, Najafgarh Road, Delhi. The defendant/appellant (hereinafter referred to as the appellant for the sake of convenience) is a firm which carries on business under the name and style New Multan Timber Store, Raja Garden Najafgarh Road, Delhi. Defendants/appellants Nos. 2 to 6 are the partners of the abovesaid firm. The appellants are the owners of a plot of land which is adjoining the colony belonging to the respondent. They have put up wooden cabins on their land and while doing so, have encroached upon the land belonging to the respondent out of Khasra No. 4996/2496/1929situated in the revenue estate of Basai Darapur, Najafgarh Road, Delhi. The respondent is the sole and exclusive owner of the abovesaid land. The appellants thus have got absolutely no right or title to encroach upon any part of the said Khasra Nos. The result is that the size of the plots bearing Nos. 116 to 120 has been reduced. Consequent to the above encroachment the respondent served the appellants with a notice dated February 24, 1968 to vacate the above said encroachment by removing the wooden cabins raised by them but to no avail.

3. The appellants put in contest, inter alia, on the following grounds: that the appellants raised wooden cabins on their own land measuring 377 sq. yards (7 biswas) forming part of Khasra No. 3988/2602/1935 situated in Village Basai Darapur, Najafgarh Road, Delhi on Ring Road, purchased by them from one Mohar Singh vide sale deed dated September 17, 1966. The appellants have thus not encroached upon any part of Khasra No. 3996/2496/1929. In view of the above there is neither any question of the reduction of the size of the plots belonging to the respondent nor there is any question of vacating the alleged encroached land. The suit is false and frivolous. It is liable to be dismissed.

4. The learned Sub-Judge after having framed the issues and recorded the evidence was of the view that there was no encroachment on the land belonging to the respondent. He thus dismissed the suit.

5. The respondent challenged the said decision before the District Judge by way of an appeal. The said appeal came up for hearing before an Additional District Judge who vide his judgment and order dated December 18, 1975 allowed the appeal, set aside the judgment and decree dated September 13, 1970 and decreed the suit of the respondent for recovery of possession of 4.4 biswas of land as shown in the report of the Local Commissioner dated September 13, 1970.

6. Aggrieved and dis-satisfied with the said judgment and decree the appellants have approached this Court by way of the Second Appeal.

7. The present appeal was admitted by this Court on February 11, 1976 as is manifest from the order sheet of the said date. However, no substantial question of law was framed on the said date. The substantial question of law was formulated by this Court during the course of arguments with the help of the learned Counsel for both the parties on September 3, 1997 in the following words:

Whether a judgment and decree can be passed on the basis of the report of the Local Commissioner which has not been proved in accordance with law

8. Learned Counsel for the appellants Mr. P.R. Monga during the course of his arguments has urged before this Court that the impugned judgment and order passed by the learned Additional District Judge is based on surmises and conjectures. There is absolutely no evidence in favour of the respondent against the appellants with regard to the alleged encroachment on the land belonging to the respondent as shown in the report of the Local Commissioner dated September 13, 1970. Thus the learned Additional District Judge fell into a grave error by coming to the conclusion that there was an encroachment to the extent of 4.4 biswas on the land belonging to the respondent. The learned first Appellate Court was wrong in placing reliance on the report of the Local Commissioner dated September 13, 1970 which has not been proved in accordance with law inasmuch as the Local Commissioner Shri Ishwar Dass, Tehsildar, was never examined as a witness by the Court. So no opportunity was afforded to the appellants to challenge the said report, and it was all the more so in view of the objections filed by the appellants to the report of the Local Commissioner. Thus the learned Counsel contends that the report of the Local Commissioner is not even worth the paper on which it has been recorded. It is thus liable to be ignored.

9. Learned Counsel for the respondent, Mr. D.R. Mahajan, has on the contrary contended that the Local Commissioner in the instant case was appointed to make local investigation as per the provisions of Order 26 Rule 9 of the Code of Civil Procedure (CPC for short). The report of the said Commissioner is very much legal evidence under Order 26 Rule 10, CPC. The same thus can be looked into and read in evidence like any other legal evidence without any formal proof and, therefore, can form the basis of a judgment. According to the learned Counsel the first Appellate Court thus did not commit any error of law while placing reliance on the said report and decreeing the suit on the basis thereof. No formal proof of the said report was needed before reading the said report in evidence.

10. Since we are concerned with the construction of Order 26 Rules 9 and 10, CPC it would be just and proper to examine them in extenso. The same are in the following words:

Commissions to make local investigations.

9. In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such Commission shall be issued, the Court shall be bound by such rules.

Procedure of Commissioner.

10(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence together with his report in writing signed by him, to the Court.

Report and depositions to be evidence in suit(2) The report of the Commissioner and the evidence taken by him but not the evidence without the report) shall be evidence in the suit and shall form part of the report; but the Court or, with the permission of the Court, 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 investigations.

(3)

11. It is abundantly clear from the relevant provisions of law cited above that the report of the Commissioner under Order 26 Rule 10, CPC is a legal evidence. Hence it was not at all necessary for the Court to examine the Commissioner for the purposes of proving the said report. No formal proof is needed to prove the report when the Commissioner has been appointed under Order 26 Rule 9, CPC. As per the provisions of Order 26 Rule 10, CPC the report can be read in evidence without any formal proof of the same, though it is true that the Court suo motu or at the instance of any of the parties may summon the Local Commissioner and examine him as a witness. The appellants herein filed objections against the report of the Local Commissioner. However, for the best reasons known to them they did not choose to summon the Local Commissioner as a witness and reconciled themselves with the report as it was. Thus if the Commissioner was not summoned and examined as a witness and as such no opportunity was given to the appellant to cross examine the Local Commission they can blame none but themselves for the impasse which they find themselves in. Thus the statute has put a handle in the hands of any of the parties through enactment of the provisions of Rule 10 of Order 26, CPC. However if they do not use the said handle they can blame none but themselves. Hence the appellants cannot be heard to say now that the report of the Local Commissioner cannot be acted upon since the Local Commissioner was not examined as a witness and they were not given any opportunity to cross examine him. A point very much akin to the point in hand arose before if Single Judge of the Andhra Pradesh High Court as reported in AIR 1973 AP 168 [LQ/TelHC/1972/90] , Vemusetti Appayyammav. Lakshman Sahu. The learned Single Judge tackled the said problem by observing: The learned Counsel for the appellant however, objects to the Commissioners report being accepted and acted upon without its being marked and without the Commissioner being examined. But under Order 26 Rule 9, C.P.C. for making a local inspection and to submit a report, the Commissioner is given the discretion to make a local. inspection and record evidence if necessary and submit a report together with such evidence as he thinks fit. Under Sub-rule (2) of Rule 10 of Order 26, C.P.C., the report of the Commissioner and the evidence taken by him form part of the record. When the Rule lays down that it forms part of the record irrespective of whether it is marked or not; the Court is bound to take that evidence into consideration. The failure to mark it as a document on behalf of the parties does not exclude it from the record. Sub-rule (2), however, lays down that either the Court or any of the parties may examine the Commissioner but if the Commissioner is not examined, the report submitted by him does not cease to form part of the record it is nowhere laid down that unless the Commissioner is examined and through him his report is marked as an exhibit, the report of the Commissioner cannot be acted upon. That being so, the lower Appellate Court was right in considering the Commissioners report and in accepting the defendants evidence and rejecting that of the plaintiffs witnesses in the light of that. The finding whether the plaintiff is in possession of the plaint schedule site or not is a finding of fact which is supported by the evidence on record and is binding on this Court in Second Appeal.

12. The same view was reiterated by a learned Single Judge of this Court as reported in 12 (1976) DLT 266 [LQ/DelHC/1975/195] =1976 Rajdhani Law Reporter 178, Harbhajan Singh v.Shakuntala Devi..It is next contended that, in any event, the report and the material enclosed by the Commissioner with it could not be substantive evidence and at best could be utilised to corroborate other evidence on the question in controversy. This contention seems to be untenable because if the report of the Commissioner and the material enclosed with it constituted legal evidence, and I have held above that it did, I do not see how it could not be used as a substantive piece of evidence to base the finding. The Authority had appointed the Commissioner to inspect the spot, to make an investigation and to submit a report and the Authority was entitled to accept the same and base its finding on such material.

13. Admittedly the Commissioner Shri Ishwar Dass was appointed on Match 4, 1976 by the learned Sub-Judge at the instance of the appellants on their application dated January 9, 1970 moved by them. The commission was executed in the presence of both the parties. The report of the Commissioner dated September 13, 1970 bears the signatures of the appellants. Thus it does not lie in the mouth of the appellants to say that since the Commissioner was not examined hence the said report should not be taken into consideration. Non-examination of the Commissioner does not invalidate the said report. It is a legal evidence as per the provisions of Order 26 Rule 10(2), CPC. Furthermore, the appellants could have examined the Local Commissioner, if they wanted to do so, and they could have made a request to that effect to the learned Sub-Judge who could have granted their prayer under Order 26 Rule l0(2), CPC. However, for the best reasons known to them they did not avail of the said opportunity. Consequently this Court feels that this argument is not available to the learned Counsel for the appellants.

14. Learned Counsel for the appellants has next contended that the appellants filed Objections to the report of the Commissioner. However, the same were not disposed of. This contention of the learned Counsel is also devoid of any force. The objections were considered by both the learned Sub-Judge as well as by the first Appellate Court. The learned Sub-Judge was of the view that since the Commissioner was not examined hence the report submitted by him could not be read in evidence. The said view was obviously not correct in accordance with law and, as such, the learned Additional District Judge dis-agreed with the said view and found that the report of the Local Commissioner is a legal evidence under Order 26 Rule 10(2), CPC and the same can be looked into and relied upon without formal proof of the said report.

15. Learned Counsel for the appellants Mr. Monga has next contended that no document, even when the same has been proved and marked and exhibited, can be looked into and read in evidence unless the contents thereof have been proved by examining the writer thereof as a witness. The learned Counsel has thus argued that the report of the Commissioner cannot be thus looked into and read into evidence. The learned Counsel has in this connection sought the help of the observations of their Lordships of the Supreme Court as reported in AIR 1981 SC 2085 [LQ/SC/1980/424] . Ramji Dayawala & Sons (P) Ltd.v. Invest Import Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document, if the troth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the troth of the facts in issue.

16. There is no dispute with the said proposition of law. However, the said observations are not applicable to a case where the report of the Local Commissioner who has been appointed under Order 26 Rule 9, CPC is sought to be relied upon. The said authority, I feel, is thus of no avail and assitance to the case of the appellants inas much as the report of the Commissioner has been held to be a legal and valid evidence as per the provisions of Order 26 Rule 10(2), CPC.

17. In the above circumstances the above question of law is answered accordingly. In view of the above, I do not see any justification to interfere with the impugned judgment and decree passed by the first Appellate Court. The appeal is consequently dismissed with costs.