AI Overview...
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Burden of Proof in Encroachment Cases - The plaintiff bears the responsibility to prove encroachment; courts are not obligated to appoint a Local Commissioner unless there is sufficient dispute or need for technical assistance. The onus is on the plaintiff to establish the encroachment through evidence. KALIAMURTHI(DIED) vs RAMASAMI SEMBRAIYAR,(DIED) - Madras, Anil Kumar VS Prakash Viz - Himachal Pradesh, Durga Kala Mandir VS S. Pulla Rao - Andhra Pradesh
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Role of Court Commissioner in Encroachment Disputes - Appointment of a Court Commissioner is appropriate when there is a genuine dispute over property boundaries or site plans, especially if parties contest the accuracy of maps or measurements. However, courts should not appoint Commissioners arbitrarily; necessity must be demonstrated, and parties can object if the report is challenged. Bhupendra VS Homraj - Current Civil Cases, Judhya Devi (since Deceased) & Another vs Naresh Kumar - Himachal Pradesh, Rambhau VS Balabhau - Bombay
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Court’s Discretion and Procedure - Courts have the discretion to appoint Commissioners suo motu or upon application, primarily to facilitate accurate boundary determination. In absence of clear necessity or agreement, courts may refrain from appointing Commissioners and rely on documentary evidence. Proper procedure includes considering whether the dispute warrants technical assistance. Rambhau VS Balabhau - Bombay, Bento Antonio Gomes alias Antonio Bento Gomes VS Rosario Salvador Carneiro - Bombay
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Main Insights:
- Plaintiffs must substantiate claims of encroachment with concrete evidence; mere assertions are insufficient.
- The appointment of a Court Commissioner is not a right but a discretion exercised based on the nature of the dispute.
- Courts must evaluate whether technical assistance (via Commissioner) is necessary, especially in boundary disputes, and ensure procedural fairness.
Conclusion: The duty of the plaintiff is to prove encroachment through credible evidence. Courts can appoint a Court Commissioner to assist in boundary disputes but are not compelled to do so unless the dispute is genuine and requires technical investigation. The decision hinges on the specifics of each case, emphasizing the importance of the plaintiff's evidentiary burden and the court’s discretion.
Search Results for "Duty of the Plaintiff to Prove Encroachment Court Commissioner can Not be Appointed"
2019 0 Supreme(Bom) 1504 • India - Bombay
VIBHA KANKANWADI
are sons of plaintiff and plaintiff is grandson of plaintiff - Property is their joint family property which is agricultural land ... there is South-North common - That was damaged by defendant in summer season and then he has made encroachment over land belonging ... hereinafter referred to as "TILR") and accordingly measurement was done - In said measurement encroachment was shown in map by blue ... When the trial Court had not exercised its power to get the cadastr....
2015 0 Supreme(P&H) 790 • India - Punjab and Haryana
RAJIV NARAIN RAINA
The plaintiff-society sought a decree of permanent injunction and mandatory injunction against the defendants, alleging encroachment ... Finding of the Court: The trial court found that the plaintiff-society owned and possessed the land and granted a permanent ... The first appeal court set aside the trial court's decision, finding the plaintiff-society to be the exclusive owner in possession ... when there is no evidence worth the paper to prove t....
2023 Supreme(Online)(KAR) 1344 • India - High Court of Karnataka
M.G.S. KAMAL, J
The First Appellate Court based its ruling on a report by a Court Commissioner which was challenged by appellants as not reflective ... ... ... Issues: The key issues addressed were whether the plaintiffs adequately proved encroachment and if the First Appellate Court's ... encroachment and injunction claims. ... This could be seen from the observation of First Appellate Court to the effect that, though the Court Commiss....
2024 Supreme(Online)(MAD) 22948 • India - High Court of Madras
Hon`ble Mr Justice C.KUMARAPPAN
Finding of the Court: The court affirmed the lower courts' findings, stating the plaintiffs failed to prove encroachments ... Property - Encroachment and Access Rights - CPC Section 100 - The court evaluated the legal provisions related to property rights ... Ratio Decidendi: The court held that the burden of proof lies with the plaintiffs to establish their claims regarding encroachments ... In this connection,....
• India - Current Civil Cases
A.P.BHANGALE
Civil Procedure Code 1908, Order 26, Rule 9- Appointment of Local Commissioner- Plaintiff alleging encroachment of the suit property ... by the defendant and seeking possession of encroached portion- Site plan of the plaintiff disputed- Court can appoint Commissioner ... In cases where parties are at dispute or not in agreement with the map or plan, Court Commissioner can certainly be appointed in order to prepare ....
2025 Supreme(Online)(HP) 5514 • India - IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Vivek Singh Thakur, J
The Trial Court granted partial relief to the plaintiff, after which the plaintiff appealed, resulting in remand for fresh examination ... ... ... Ratio Decidendi: The court emphasized that boundary disputes require thorough and correct determination through appointed ... proper demarcation for resolution and court can appoint Local Commissioner even suo motu. ... LC 42, had upheld the order passed by learned District Judge, allowing the application under Order 26 R....
2018 0 Supreme(Bom) 2064 • India - Bombay
NUTAN D.SARDESSAI
and was not decided by the Appellate Court. – Plaintiffs had failed to prove that he was entitled to a strip of land of the width ... howsoever appealing cannot advance his case when there was no dispute about the boundaries nor was it a case of encroachment at ... survey record and discrepancy in the area qua the Sale Deed and the Survey records all the more necessitated the appointment of the Commissioner ... Hence there was every reason for the appellate Court to h....
2019 0 Supreme(HP) 1033 • India - Himachal Pradesh
AJAY MOHAN GOEL
Issues: Dispute over encroachment, application for appointing a Local Commissioner, duty of the court to collect evidence. ... Ratio Decidendi: The petitioner had the onus to prove the encroachment, and the court was not obligated to appoint a Local ... of a Local Commissioner was not necessary. ... This Court concurs with the findings returned by the learned trial Court, that ....
2014 0 Supreme(AP) 1539 • India - Andhra Pradesh
B.CHANDRA KUMAR
from the Court – Held, the plaintiff that Subba Rao who was the original owner of the property when the plaintiff purchased the ... Though, it appears that the plaintiff was in possession of the property on the date of filing of the suit, but it is not entitled ... Whether the plaintiff can maintain a suit seeking for injunction against the real owner asserting the possession and seeking protection ... It is also held that the report of the Commissioner is n....
2013 0 Supreme(Bom) 2439 • India - Bombay
B.R.GAVAI
before appellate Court on dispute aspect and also no application for appointment of Court Commissioner—Appellate Court ought to ... have remitted the matter to Trial Court for appointing Commissioner for conducting spot inspection. ... Civil Procedure Code, 1908—Order 26, Rule 9 and Section 75—Appointment of Court Commissioner—No application filed showing necessity ... It has also been held by this Court that merely because a #HL_S....
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