Court Commissioner Can Be Appointed At Pre-Mature Stage Under Order 26 Rule 9 CPC In Encroachment & Boundary Dispute Cases: Bombay High Court

The Bombay High Court stated that court commissioner can be appointed at pre-mature stage under Order XXVI Rule 9 CPC in encroachment and boundary dispute.

The Bench of Justice N.J. Jamadar observed that “the provisions contained in Order XXVI Rule 9 of the Court indicate that the Court is empowered to appoint the court Commissioner to elucidate the matter in controversy. The term 'elucidation of the matter in controversy' cannot be equated to “elucidation of the evidence adduced by the parties”. To lay down a cast iron rule that the Court commissioner cannot be appointed before the parties have adduced evidence would be, in effect, disabling the Court from getting assistance it requires for the determination of the controversy between the parties.”

The bench after looking into Section 75 and Order XXVI Rule 9 of the CPC observed that restraint on the power of the Court to appoint the Court Commissioner qua a particular stage of the proceeding cannot be discerned. It cannot be laid down as an immutable rule of law that the Court commissioner cannot be appointed before the parties have started to adduce evidence.

In this case, the Plaintiff had acquired the land from different vendors. Upon acquisition of the lands, it transpired that Defendant No.1 has committed encroachment over the suit land. Hence, the suit for removal of encroachment was filed.

The Plaintiff also sought the relief of appointment of the cadestral Surveyor as a Court Commissioner to measure the suit land and fix the boundaries thereof, and, in the event, the measurement revealed encroachment, a decree for removal of encroachment and delivery of possession of the encroached portion of the suit land.

In the said suit, the Plaintiff filed an application for appointment of the Court Commissioner on the day the suit was instituted. The Civil Judge was persuaded to allow the application opining, inter alia, that the joint measurement of the lands and the report of the cadestral surveyor would assist the Court in deciding the real question in controversy between the parties.

The petitioner submitted that the Civil Judge committed an error in law in appointing the Court Commissioner at the very inception of the suit. The issues have not yet been framed. The trial has not commenced. At a pre-mature stage, the Civil Judge could not have directed the appointment of the Court Commissioner.

The respondent no.1 submitted that the Plaintiff had approached the Court with a positive case that the Defendants have committed encroachment over the area. Since the allegations are of encroachment and boundary dispute has arisen, Civil Judge committed no error in appointing Court Commissioner.

The bench referred to the case of Haryana Waqf Board v. Shanti Sarup and Ors. (2008) 8 SCC 671 and stated that the question of demarcation of the boundaries of the land and encroachment squarely arises for determination. Where the question is of removal of encroachment and demarcation of boundaries, it is necessary to have a joint measurement of the adjoining lands.

The appointment of the cadestral surveyor to have a joint measurement of the suit land and the adjacent land of the Defendants would equip the Court to decide the lis in a just manner. Thus, no interference is warranted in the impugned order, stated the bench.

In view of the above, the bench dismissed the petition.

Case Title: Pandit Vithal Landage v. Vishnu Govind Pawar and Anr.

Citation: 2025 LiveLaw (Bom) 186

Case Number: WRIT PETITION NO.5158 OF 2024

Counsel for Petitioner: Aniesh Jadhav with Nikhil Adkine and Samarth Kale

Counsel for Respondent: Rahul P. Kasbekar i/by Mr. Hrishikesh S. Shinde

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