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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD
SHAILESH P. BRAHME, J.
Rawanbapu, s/o. Bhimrao Deshmukh and Ors. – Petitioners
Versus
Bapurao, s/o. Rangrao Deshmukh and Ors. - Respondents
Writ Petition No. 13290 Of 2022
Decided On : 08-12-2023
Rule - Appointment of Commissioner - Code of Civil Procedure - Order 26 Rule 9 - Summary
Fact of the Case:
The petitioners sought appointment of Commissioner at the appellate stage to resolve the controversy over encroached land. The trial Court dismissed the suit, and a substantive appeal was pending. The petitioners applied for the appointment of Court Commissioner under Order 26 Rule 9 of CPC, which was contested by the respondents.
Finding of the Court:
The Court found that the appointment of Commissioner was necessary to resolve the controversy and facilitate the Lower Appellate Court in elucidating the matter. The impugned order was deemed unsustainable, and the application for appointment of Commissioner was allowed with directions.
Issues: The main issue was the existence of encroached land, the need for appointment of Commissioner, and the timeliness of the application. The Court also considered the findings of the trial Court and the submissions of both parties.
Ratio Decidendi: The Court's decision was influenced by the need to resolve the controversy and facilitate the Lower Appellate Court in elucidating the matter. The Court also considered the relevant provisions of Order 26 Rule 9 of CPC and the submissions of both parties.
Final Decision: The impugned order was quashed and set aside, and the application for appointment of Commissioner was allowed with directions to execute the commission and submit the report within a period of eight weeks. The petitioners were also directed not to protract the hearing of the appeal after receiving the report of the Commissioner, and the hearing of the appeal was expedited.
Certainly. Based on the provided legal document, here are the key points summarized:
The Court addressed an application for the appointment of a Court Commissioner at the appellate stage to resolve a land encroachment dispute. The petitioners sought this appointment to facilitate clarity over the disputed land area (!) (!) .
The trial Court had dismissed the suit, finding no encroachment, but the petitioners challenged this decision and filed an appeal. The appellate Court found it necessary to appoint a Commissioner to accurately measure and identify the disputed land, considering the evidence and maps on record (!) (!) .
The Court noted that despite the trial Court recording findings against the existence of encroachment, evidence such as maps and witness testimonies indicated the presence of the disputed land area. The Court emphasized that the appointment of a Commissioner would aid in resolving the controversy and prevent unnecessary delays or remands (!) (!) .
The Court observed that the application for appointment of a Commissioner was filed at the appellate stage and was not time-barred. It highlighted that such an appointment is permissible even in the second appellate stage, especially when it would assist in elucidating factual disputes (!) (!) .
The Court considered the arguments regarding the belated filing of the application and found no merit in claims that it was intended to protract proceedings. It recognized that the petitioners had made sufficient efforts earlier and that the evidence on record justified the need for a local inspection and measurement (!) (!) .
Ultimately, the Court held that the impugned order rejecting the appointment of a Commissioner was unsustainable. It set aside that order and directed the appointment of a Commissioner, with a mandate to submit a report within eight weeks. The Court also directed that the hearing of the appeal be expedited and that the petitioners refrain from delaying proceedings after receiving the report (!) (!) (!) .
The ruling emphasized that appointing a Commissioner at this stage would facilitate a fair and efficient resolution of the dispute, avoiding unnecessary remands and protraction of the appeal process (!) (!) .
The overall ruling was in favor of the petitioners, with the rule being made absolute and the application for appointment of the Commissioner being allowed with specific directions (!) .
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JUDGMENT :
Rule.
2. Rule is made returnable forthwith with the consent of the parties. Heard learned Counsel for both the sides finally.
3. The petitioners are assailing order dated 03.08.2022 passed below Exhibit-89 by the learned Adhoc District Judge 1, Basmathnagar in RCA No.47/2015, rejecting the prayer for appointment of Commissioner at the appellate stage. The petitioners are the original plaintiffs and the respondents are original defendants in RCS No.25/2010. It was dismissed by the judgment and decree dated 17.07.2015. The petitioners have preferred RCA No.47/2015 which is pending.
4. The background for fling application at Exhibit-89 under Order 26 Rule 9 of the Code of Civil Procedure is that the suit was fled for declaration, possession of encroached portion and mesne profit by the petitioners. It is their case that they are the owners of Survey No.78 (gut no.369) situated at Hatta, Taluka Basmath. Out of that 1H and 40R was sold by the petitioner no.1 to the respondent no.1. It was converted into plots through sanctioned lay out. Bhagyanagar Grah Sanstha was founded and plots were distributed to its member. The controversy is in respect of 8R of the land which was in possession of the petitioners and which was not sold. The said portion was encroached by the defendants illegally and that was a cause to file suit.
5. The respondents contested the suit and contended that there was no 8R of land in existence. The lay out plan was sanctioned. By following due procedure of law, plots were sold to different persons. The petitioners were not concerned with any so called land.
6. Both the parties led evidence before the trial Court. The petitioners examined seven witnesses, including PW-2/Assistant Director of Town Planning and PW-3/Surveyor. The maps were also placed on record. The petitioners had applied for the measurement privately. However the Court Commissioner was not appointed in the trial Court under Order 26 Rule 9 of CPC. The suit was dismissed holding that there was no encroachment.
7. The petitioners have applied for appointment of Court Commissioner by fling application at Exhibit-89 on 29.06.2022. The learned Counsel for the petitioners submits that identification of 8R of the suit land is under consideration. Despite there being evidence of PW-2 and 3 and various maps on record, the position has not been cleared. Though the trial Court has recorded that there is no encroachment but against that substantive appeal is preferred. The maps which are produced on record do indicate the existence of portion of 8R.
8. The learned Counsel has drawn my attention to findings recorded by the trial Court in paragraph no.23 and 34 of the judgment. He further submits that the petitioners submitted application for production of documents under Order 41 Rule 27 of CPC. It was allowed. In wake of those developments, it became more glaring to have the local inspection. He submits that the learned Judge erred in holding that there was no point in directing the measurement because already it was done.
9. The learned Counsel for the respondents vehemently opposed the submissions. He would submit that the application at Exhibit-89 was submitted belatedly. The intention for fling application is to fill up the lacuna as the trial Court had recorded findings about encroachment against the petitioners. The exercise which is sought to be done by the appointment of Court Commissioner was already undertaken. This is an attempt to protract the hearing of appeal which is due for the final hearing.
10. I have considered rival submissions of both the learned Counsels. I have gone through the judgment passed by the trial Court and the documents produced on record. The petitioners have relied upon following judgments :
b. Shyam Janardan Chaodary Vs. Asha Ramdas Katkar and Another
c. Yashwant Bhaduji Ghuse Vs. Vithobaji Laxman Ladekar
d. Rambhau s/o Daulatrao Mule & Ors. Vs. Balabhau s/o Pandharinath Kachre
The appointment of a Commissioner can be necessary to clarify facts in cases of land encroachment.
Appointment of Commissioner in a matter concerning illegal encroachment is justified.
(1) Court is empowered to appoint another Court Commissioner and there is no question of attracting principle of res judicata.(2) Production of additional evidence – Appellate Court can even direct e....
The appointment of a Civil Court Commissioner under Order XXVI Rule 9 is essential in boundary disputes to ascertain possession and clarify any allegations of encroachment.
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