Court-Appointed Commissioner Can't Be Used To Collect Evidence For Parties: Jharkhand HC Rejects Plea Seeking Survey Of Disputed Property

The Jharkhand High Court has reiterated that a commissioner as a pleader appointed by the court under Order XXVI Rule 10-A of the CPC cannot collect evidence on behalf of parties to a suit.

Justice Sanjay Kumar Dwivedi held that the appointment of a commissioner is meant to elucidate matters in dispute and not to aid a party in establishing its claims.

The bench held, “for the purpose of getting report from survey knowing commissioner to find out the present physical possession and the land in dispute and to find out the actual state of affairs between the parties, the appointment of survey knowing commissioner for that purpose will not bound to collect the evidence rather it will elucidate any matter in dispute.”

“Normally writ is to be issued to a commissioner for local investigation to appreciate the evidence already recorded. The commissioner can be appointed where it is to be found as to which plot the disputed land lies. A writ can be issued to any person to relay the same on the bench even through no evidence is required if the court finds that the parties themselves cannot produce the evidence to that effect,” he added.

The petitioners, defendants in the Title Suit, had prayed for appointment of a commissioner to certify the age and size of the house structure standing on the disputed property. The trial court thus rejected the plea, against which the present challenge before the High Court.

The petitioners placed reliance on judgments of the High Court in the cases of Rama Avatar Soni v. Mahanta Laxmidhar Das & Others [(2019) 11 SCC 415] and Committee of Management, Anjuman Intezamia Masajid, Varanasi v. Rakhi Singh & Others [(2024) 3 SCC 336] whereby it was held that an appointment of a commissioner was necessary to determine the nature of the property.

However, the High Court rejected these arguments and observed that the subject matter of the suit was upon a sale deed and the area of the disputed property was well-known to both parties. It said that no commissioner could be appointed only to ascertain facts which otherwise should have been proved by the parties through their evidence.

Expounding on Order XXVI Rule 10 CPC, the Court stated, “the commissioner has to submit a report in writing to the learned court. The report of the commissioner and the evidence taken by him, constitute evidence in the suit and form part of the record. However, with the permission of the court, the Commissioner may be examined personally in open court touching any of the matters of the report. The evidentiary value of any report of the commissioner is a matter to be tested in the suit. It is open to objections including cross-objections.”

While referring to Praga Tools Corpn. Ltd. v. Mahboobunnissa Begum [(2001) 6 SCC 238], the court reiterated that the report of the commissioner can only assist the trial court and not substitute evidence.

The court further referred to the Supreme Court's observation in Anjuman Intezamia Masajid, whereby it was held that a scientific survey under Order XXVI Rule 9 should ordinarily not be ordered until the court is fully cognizant of the issues in the suit. It held that the allowance of commissioning at an early stage could be tantamount to pre-trial evidence collection, which is not allowed.

While dismissing the petition, the High Court held that no case for interference was made out, inasmuch as the rejection of the plea for a pleader commissioner was justified on facts and legal principles governing the same.

Case Title: Manoj Kumar Khatri @ Manoj Khatr and Anr vs Kumar Rohit Singh and anr

LL Citation: 2025 LiveLaw (Jha) 11

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