Friday 9 August 2013

Court commissioner when can be appointed?



 Bhangale, J., F.M. Reis, J., have also held that in case of  dispute 
of encroachment of a site, an appointment of Court Commissioner who could be City 
Survey Officer or Cadastral Surveyor for taking joint measurement of the property 
owned by the plaintiff and defendant for the purpose of local investigation under 
Order XXVI, Rule 9 of the Code of Civil Procedure would be necessary for the just 
decision of the case. It has also been held by this Court that merely because a Court 
Commissioner is appointed, it will not prejudice the interest of either of the parties. It 
has   been   held   that   if   any   of   the   parties   is   aggrieved   by   the   report   of   the   Court 

Commissioner, an opportunity would be available to that party to cross examine the 

Court Commissioner and to point out as to how his conclusions were not correct. It 
has further been observed that the party who was not aggrieved would also prove 
how his conclusions are correct. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6497 OF 2009

Kolhapuri Bandu Lakade V/s. Yallappa Chinappa Lakade, Decd.,
Thru’ Pooja @ Poojari Y. Lakade & Ors.

    CORAM : B.R. GAVAI, J.

    DATE : 14    MARCH, 2011.
   
Citation; 2011 (3) ALL M R 599


Rule. Rule made returnable forthwith. Heard by consent.
2. The Petitioner challenges the order dated 7th July, 2009 passed by the learned
1.
8th Joint Civil Judge, Senior Division, Pune below Exhibit 35 in Regular Civil Suit No.
513   of   2007,   thereby   rejecting   the   application   filed   by   the   present   Petitioner   for
appointment of Court Commissioner.
3.

The facts in brief giving rise to the present Petition are as under :
The Petitioner­Plaintiff has filed the Suit, being Regular Civil Suit No.513 of
2007, for declaration and restoration of possession after removing the encroachment
of the Respondent­Defendant. The Plaintiff in the plaint has contended that the suit
land is owned by the Plaintiff from the period of his ancestors; that the said land has
been given City Survey No.1894; that the Plaintiff has constructed two rooms on the

said land and the room admeasuring 20 ft. x 10 ft. on the northern side was given to
the   Respondent­Defendant   for   residing   therein   for   certain   time   without   any
consideration. It is contended that though the Defendant had assured the Plaintiff
that   after   making   alternate   arrangement   he   will   return   the   said   room,   he   was
refusing to do so for last 10 to 12 years. In this premise, the Plaintiff has prayed for
the   reliefs   as   claimed   hereinabove.   The   Suit   of   the   Plaintiff   is   resisted   by   the
Defendant. It has been contended by the Defendant that the lands bearing Survey

No.315B and Survey No.317B/1 were given by the British Government in the year
1911 to the persons belonging to Vaidu Nomadic Tribe. It was contended that for the
sake of convenience, the land was given in the name of ancestors Shankar Laxman
Pawar and as such the name of said Shankar Laxman Pawar and his brothers and
sisters were recorded in the 7/12 Extract. The contention of the Plaintiff, that he was
the   owner   of   the   land   was   denied   by   the   Defendant.   It   is   the   contention   of   the
Defendant that the house in which he is residing has been owned by him since the
period of his ancestors. It is the contention of the Defendant that in the records, the
said house has been registered as City Survey No.1895. The Defendant has also filed
a counter claim for a declaration that the property, as stated in the counter claim,
was the property in possession of the Defendant, from the period of his ancestors. A
declaration was prayed in the counter claim that the Plaintiff had no relation with
the   house   on   which   the   Defendant   was   residing   and   further   for   an   injunction
restraining the Plaintiff from disturbing the peaceful possession of the Defendant.

During   the   pendency   of   the   Suit,   two   applications   came   to   be   filed   for
4.
temporary injunction; one by the Plaintiff and the other by the original Defendant.
The application of the Plaintiff was rejected and that of the Defendant was allowed.
Being aggrieved thereby, an Appeal was carried before the learned District Judge.
The same was also dismissed. Being aggrieved thereby, the petitioner approached this
Court by way of Writ Petition No.1440 of 2009. The said Petition was disposed of by
the   order   dated   6th  March,   2009.   Thereafter,   the   application   below   Exhibit   35   in

Regular   Civil   Suit   No.513   of   2007   came   to   be   filed   for   appointment   of   the   City
present Petition.
Mr.   Godbole,   the   learned   Counsel   appearing   on   behalf   of   the   Petitioner,
5.
Survey Officer, Pune as “Court Commissioner”. The same was rejected and hence the
submits   that   the   issue   involved   in   the   present   Petition   is   as   to   whether   the
construction of the Respondent­Defendant is on City Survey No.1894 or City Survey
No.1895.   The   appointment   of   the   Taluka   Inspector   of   Land   Records   as   a   “Court
Commissioner” was necessary in  as much as the  report of the said Commissioner
would facilitate the Court for finding out an actual position. Mr. Godbole submitted
that the issue involved in the present Petition is the issue involved in various matters
and,   therefore,   has   taken   me   through   various   pronouncements   on   the   issue.   The
learned Counsel has relied on the judgments of the learned Single Judges of this
Court, namely, by M.S. Vaidya, J., in the case of Tajmulhussain s/o. Mulla Mumtaz
Hussain Vs. Satish s/o. Bhanudas Chavan, reported in  1994 (3) Bom. C.R. 317,

various   judgments   delivered   by   S.T.   Kharche,   J.,   in   the   cases   of  Ushabai   w/o.
Sharadchandra Bannore Vs. Wasudeo s/o. Baliramji Mehare & Ors., reported in
2003 Mh.L.J. 594, Ramchandra Bhikaji Jagtap Vs. Dudharam Langruji Padvekar,
Dead, Thru’ L.Rs. & Ors., reported in 2003 B.C.I. 659, and Kashinath Ramkrishna
Chopade   Vs.   Purushottam   Tulshiram   Tekade   &   Ors.,   reported   in  2005   (6)
Bom.C.R. XXVI7, by  A.P
. Bhangale, J., in the case of  Yeshwant Bhaduji Ghuse Vs.
Vithobaji Laxman Ladekar, reported in 2010 (3) Mh.L.J. 956, by S.B. Deshmukh,

J.,   in   the   case   of  Vij   Kamagar   Sahakari   Patsanstha   Ltd.   Vs.   Ramkrushna
Dhondiram Thorat & Ors., reported in 2009 (1) Bom.C.R. 880, and the judgment
of the Apex Court in the case of  Haryana Waqf Board Vs. Shanti Sarup & Ors.,
6.
reported in (2008) 8 SCC 671.
The   learned   Counsel   further   submitted   that   the   view   taken   by   the   learned
Single   Judge   of   this   Court,   namely,   Khanwilkar,   J.,   in   the   case   of  Sanjay   s/o.
Namdeo Khandare Vs. Sahebrao s/o. Kachru Khandare & Ors., reported in 2001
(1)   Bom.C.R.   800,   is   per   incurium   since   it   does   not   take   into   consideration   the
provisions of Section 75 and Order XXVI Rule 9 of the Code of Civil Procedure in
correct  perspective. He further  submits  that the  view taken  by me in  the  case  of
Pandurang Nandlal Chandak & Anr. Vs. Sandip Mukundrao Pensalwar & Anr.,
reported in 2009 (2) Mh.L.J. 487, is also per incurium, in as much as the same does
not take into consideration the provisions of Section 75 and Order XXVI Rule 9 of the
Code of Civil Procedure in correct prospective and also does not notice the judgment

of the Apex  Court in the case of Haryana Waqf Board cited supra, which is prior to
7.
the decision in Pandurang’s case, cited supra.
As   against   this,   Mr.   Rahul   Kashid,   the   learned   Counsel   appearing   for   the
Respondents, on the contrary submits that the learned trial Judge has rightly rejected
the application, inasmuch as it was in the nature of collecting evidence in support of
Though   various   judgments   of   various   learned   Single   Judges   of   this   Court
ig
8.
the case of the Plaintiff and, therefore, no interference could be warranted.
including my judgment have been pointed out by Mr. Godbole. I do not think that a
reference to those judgments would be necessary in view of the judgment of the Apex
Court in the case of Haryana Waqf Board cited supra. In the said case a Suit was
filed   by   the   Punjab   Waqf   Board   for   declaration   and   injunction.   The   suit   of   the
Plaintiff claiming that the Defendants had encroached in suit property was dismissed
by   the   trial   Court   on   the   ground   that   the   Board   had   failed   to   prove   that   the
Respondents have encroached upon the land belonging to the said Board. The Appeal
preferred   thereagainst   was   dismissed   by   the   Appellate   Court.   The   Second   Appeal
filed before the High Court was dismissed summarily on the ground that the Second
Appeal stood concluded by the concurrent findings of facts. In this background, the
Apex Court observed thus :
“3.
The dispute that was raised by the parties before the court
was whether the respondent had encroached upon any land
belonging to the appellant Board. Therefore, it cannot be in
dispute that the dispute was in respect of the encroachment
of the suit land.

9.
Admittedly, in this case, an application was filed under Order
XXVI   Rule   9   of   the   Code   of   Civil   Procedure   which   was
rejected by the trial court but in view of the fact that it was a
case of demarcation of the disputed land, it was appropriate
for the court to direct the investigation by appointing a Local
Commissioner under Order XXVI Rule 9 CPC.”
4.
Observing as aforesaid, the Apex Court set aside the judgement and order of
the High Court and while setting aside the same, the Apex Court observed that the
ig
High Court ought to have considered whether in view of the nature of dispute, the
Local Commissioner should be appointed for the purpose of demarcation in respect
of suit land. As such the matter was remitted back to the High Court for deciding it in
the light of the observations made by the Apex Court.
The learned Single  Judge  of  this  Court, F.M. Reis, J., in  the  case of  Girish
10.
Vasantrao   Bhoyar   &   Anr.   Vs.   Nimbaji   Warluji   Bambal,   reported   in  2009   (4)
Mh.L.J. 371, has held that in order to determine whether there is an encroachment,
it is always desirable to get the measurements of the land encroached upon. Another
learned Single Judge of this Court, A.P
. Bhangale, J., in the case of Yeshwant Bhaduji
Ghuse Vs. Vithobaji Laxman Ladekar, reported in 2010 (3) Mh.L.J. 956, though has
not noticed the judgment of the Apex Court in the case of  Haryana Waqf Board
cited  supra,  but   relying   on   the   earlier   judgment   of   this   Court   delivered   by   S.T.
Kharche, J., in the case of Ushabai w/o. Sharadchandra Bannore cited supra, has
observed thus :

In Ushabai Sharadchandra vs. Wasudeo and ors., reported in
2004(2)  Mh.L.J. 594,  this Court has held that the maps or
plans made for the purpose of any cause must be proved to
be   accurate.   The   onus   of   proving   that   such   a   map   is
accurate lies on the party who produces it. The maps must
be proved by the person who has prepared them. In case of
dispute of an encroachment or dimension of a site, the first
essential is to get an agreed map and if the parties cannot
agree   on   one,   a   Commissioner   must   be   appointed   to
prepare the same. In the absence of such a map, the decree
is   probably   meaningless   and   execution   means   virtually
starting the case overall again.”
Even prior to the judgment of the Apex Court in the case of  Haryana Waqf
ig
11.
“8.
7
Board cited supra, the learned Single Judge of this Court, M.S. Vaidya, J., in the case
of Tajmulhussain cited supra has observed thus :
..........................................................................................
In   a  suit,  in   which  the  cause   of  action   is   founded   on  the
alleged encroachment of a particular land and in which the
determination   of   the   boundary   line   between   the   two
adjoining properties is the only issue, the Court could hardly
decide   such   a   matter   on   its   own   without   any   dependable
expert assistance.”
“9.
12.
The learned Single Judge has further observed that :
“10. It   may   be   noted   here   that   making   of   such   an   order   for
appointment of the Commissioner would not have prejudiced
the interest of either of the parties, because it was only in that
eventuality, that it was possible for the Court to arrive at a
proper  conclusion. If at all any party was  aggrieved by the
report given by the Commissioner so appointed by the Court,
an opportunity would have become available to that party to
cross­examine   the   Commissioner   and   to   point   out   how   his
conclusions   were   not   correct.   The   party,   who   was   not
aggrieved could also prove how his conclusions were correct.”


Another learned Single Judge of this Court, namely, S.T. Kharche, J., in the
case of Kashinath Ramkrishna Chopade cited supra has observed thus ;
13.
It can thus clearly be seen that the Apex Court in the case of Haryana Waqf
14.

“13. In   view   of   the   aforesaid   legal   position,   it   appears   to   be
absolutely necessary that the City Surveyor ought to have
been appointed when the question arises as to whether any
encroachment has been made or not. The appointment of
City   Surveyor   or   Cadastral   Surveyor   for   taking   joint
measurement   of   the   property   owned   by   the   plaintiff   and
defendant for the purpose of local investigation under Order
XXVI, Rule 9 of the Code of Civil Procedure not only become
relevant but appears to be absolutely essential for the just
decision of the case.”
Board cited supra in unequivocal terms has held that in the case of demarcation of
disputed   lands,   it   is   appropriate   for   the   Court   to   direct   the   investigation   by
appointing a Local Commissioner as provided under Order XXVI, Rule 9 of the Code
of Civil Procedure. The other learned Judges of this Court, namely, M.S. Vaidya,  J.,
S.T. Kharche, J., A.P
. Bhangale, J., F.M. Reis, J., have also held that in case of  dispute
of encroachment of a site, an appointment of Court Commissioner who could be City
Survey Officer or Cadastral Surveyor for taking joint measurement of the property
owned by the plaintiff and defendant for the purpose of local investigation under
Order XXVI, Rule 9 of the Code of Civil Procedure would be necessary for the just
decision of the case. It has also been held by this Court that merely because a Court
Commissioner is appointed, it will not prejudice the interest of either of the parties. It
has   been   held   that   if   any   of   the   parties   is   aggrieved   by   the   report   of   the   Court

Commissioner, an opportunity would be available to that party to cross examine the
Court Commissioner and to point out as to how his conclusions were not correct. It
has further been observed that the party who was not aggrieved would also prove
how his conclusions are correct.
15.
In   so  far   as   judgment   delivered   by   the  learned   Single   Judge   of   this  Court,
namely,   Khanwilkar,   J.,   in   the   case   of  Sanjay   Namdeo   Khandare  cited  supra  is

concerned, in the said matter the appointment of the Commissioner, who was sought
to   be   appointed,   was   for   the   purpose   of   finding   out   as   to   who   was   in   actual
possession of the suit land. In that view of the matter, it appears that the learned
Judge has held that the Court Commissioner cannot be appointed for collecting the
16.
evidence.
In so far as my judgment in the case of  Pandurang Nandlal Chandak  cited
supra is concerned, it is clear from the said judgment that the judgment of the Apex
Court in the case of Haryana Waqf Board cited supra was not brought to my notice,
nor was it noticed by me while delivering the said judgment. It can further be seen
that the judgment of the learned Single Judge of this Court, namely, M.S. Vaidya, J.,
in the case of  Tajmulhussain  cited  supra  was also  not noticed by me. In any case,
now in view of the judgment of the Apex Court in the case of Haryana Waqf Board
cited supra, the view taken by me in the case of Pandurang Nandlal Chandak cited
supra will have to be held as per incurium.

In so far as the facts in the present case are concerned, undisputedly, one of the
17.
main areas of dispute between the parties is as to whether the construction is on City
Survey No.1894 or City Survey No.1895. It is the contention of the Petitioner that the
construction is on City Survey No.1894, whereas it is the contention of the original
Defendant   that   it   is   on   City   Survey   No.1895,   which   according   to   him   is   in   his
possession from the period of his ancestors. No doubt that there are other ancillary
issues regarding the title of the property also. However, in  so far as claim of the

Plaintiff regarding the entitlement of Defendant to City Survey No.1895 is concerned,
the   same   is   not   contested   by   the   Plaintiff.   At   the   same   time,   in   so   far   as   the
entitlement of the Plaintiff to City Survey No.1894 is concerned, the same is not
18.
contested by the Defendants.
One more fact that needs to be taken into consideration is that though the
Petitioner had applied for getting the measurement done through the City Survey
Officer, the same could be done as the Defendants­Respondents had objected to the
measurement being carried out by the City Survey Officer on the ground of pendency
of the Regular Civil Suit No.513 of 2007 between the parties.
19.
In that view of the matter, to find out as to whether the Defendants have, in
fact, encroached upon the City Survey No.1894 or not, I find that the appointment of
Court Commissioner would assist the Court in arriving at the just decision. Needless
to state that, as has been consistently observed, the report of the Court Commissioner

would not be conclusive and if any of the parties are aggrieved by the same, such a
party would always be entitled to cross ­examine the Court Commissioner, so as to
20.
challenge the veracity of the report.
In that view of the  matter, the Writ Petition  succeeds. The impugned order
dated 7th July, 2009 passed by the learned 8th Joint Civil Judge, Senior Division, Pune
below Exhibit 35 in Regular Civil Suit No.513 of 2007 is quashed and set aside. The

application filed by the Petitioner­Plaintiff below Exhibit 35 in Regular Civil Suit No.
513   of   2007   for   appointment   of   City   Survey   Officer   as   “Court   Commissioner”   is
In the facts and circumstances of the case, there shall be no order as to costs.
[B.R. GAVAI, J.]
21.
allowed.


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