In a dispute about the identity/location or boundaries of a land, the court may appoint a commissioner under Order 26 Rule 9 of C.P.C. to assist in elucidating the matter.

1. Rule, made returnable forthwith. The learned counsel for the respondents waives service. Heard finally by consent of parties.

2. All these petitions involve a common question about appointment of a commissioner and as such these petitions are disposed of by this common judgment.

3. The petitioners are the plaintiffs who have filed six different suits against the respondents in these petitions. The petitioners are claiming mandatory injunction directing the respondents to remove the structures constructed by the respondents in the suit land known as “Gorbatta” also known as “Corpeaband” situated at Khadpabandh locality of Ponda Taluka bearing survey no.209/0 which is renumbered as survey no. 209/ 1. The respondents/defendants are claiming that the suit structures are falling in land survey no.14 and not survey no.209/1 as claimed by the petitioners.

4. The trial Court has framed issues and the trial has commenced in which PW.1 has entered into the witness box. At this stage the petitioners filed applications in the aforesaid suits for appointment of Commissioner. It is contended that the dispute is of a technical nature in as much as, the identification/location of land where the suit structures fall requires a 'thorough scientific investigation' to be conducted. It is submitted that the such investigation would assist the Court to decide the controversy. It is therefore, prayed that it would be just, proper and necessary that a Commissioner is appointed to investigate and report. The petitioners, thus prayed for issuance of a commission to the Directorate of Land Survey, for deputing a surveyor to demarcate the various plots and structures standing thereon as claimed by the defendants vis-a-vis the survey number of the land where the said structures fall and submit a report along with a plan.

5. The application was opposed on behalf of the respondents contending that the petitioners are trying to “adopt a short-cut” which is not permissible. It is contended that it is for the petitioner/plaintiffs to lead evidence to prove their case. It is submitted that the petitioners cannot seek assistance of the Court to collect evidence.

6. The learned trial Court by the impugned order dated 5/11/2015 has dismissed the application on the ground that the land survey no.209/1 and the land survey no.14 are separate and distinct properties having separate survey plans. The learned trial Court has found that it is nobody’s case that any area from out of survey no.209/1 has been erroneously included in survey no.14 or the other way round. It has been found that the two survey numbers remain independent and being promulgated have separate survey numbers. It is primarily for the plaintiffs to establish their case and the plaintiffs/ petitioners cannot collect evidence through independent body for identifying the structures. It is this order which is challenged in these petitions.

7. I have heard Shri Usgaonkar the learned counsel for the petitioners and Shri Agni the learned counsel for the respondents and I have perused the impugned order passed.

8. It is contended on behalf of the petitioners that the trial Court was in error in rejecting the application on the premise that it is nobody's case about erroneous inclusion of a portion of the land survey no.209/1 in land survey no.14 and the vice versa. It is submitted that this cannot be a reason for refusing to appoint a Commissioner. It is submitted that according to the petitioners, the subject structures constructed by the defendants are standing in land survey no.209/1, while the respondents claim that the structures are standing on distinct plots which are part of survey no. 14. It is submitted that such a dispute would require the assistance of a technical expert and the trial court ought to have appointed a commissioner, as prayed, under Order 26 Rule 9 of the Code of Civil Procedure (C.P.C. for short).

9. On behalf of the petitioners reliance is placed on the decision of the Hon'ble