Saji Koduvath, Advocate, Kottayam
Power of Courts to Issue Commissions
Courts derive power to issue Commissions from Sec. 75 CPC. It reads as under:
Sec. 75. Power of Court to Issue Commissions
- Subject to such conditions and limitations as may be prescribed, the court may issue a commission-
- (a) to examine any person;
- (b) to make a local investigation;
- (c) to examine or adjust accounts; or
- (d) to make a partition;
- (e) to hold a scientific, technical, or expert investigation;
- (f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;
- (g) to perform any ministerial act.
Commissions to Make Local Investigations
Order 26 rules 9 and 10 deal with appointment of Commissions to make local investigations. They read as under:
O 26 r 9. Commissions to make local investigations-
- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:
- Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.
O 26 r 10. Procedure of Commissioner-
- (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.
- (2) Report and deposition to be evidence in suit.
- Commissioner may be examined in person-
- The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to suit may examine the Commissioner personally in open Court touching any part of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.
- (3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.
When serious dispute on Area or Identity, Issue a Survey Commission
The Supreme Court, in Shreepat v. Rajendra Prasad, 2000 (7)) JT 379; 2000-3 MLJ 84 ; 2000 KHC 4443, it is observed as under:
- “In our opinion, this contention is correct. Since there was a serious dispute with regard to the area and boundaries of the land in question, especially with regard to its identity, the courts below, before decreeing the suit should have got the identity established by issuing a survey commission to locate the plot in dispute and find out whether it formed part of Khasra No. 257/3 or Khasra No. 257/1. This having not been done has resulted in serious miscarriage of justice.”
Advocate-Commissioner Appointed for demarcation even in injunction Suit
In Haryana Waqf Board v. Shanti Sarup, 2008(8) SCC 671, it is pointed out that, even in a suit for injunction, where there is a necessity for demarcation of land, an Advocate-Commissioner can be appointed. It has been held that if the controversy is regarding the demarcation of the land between the parties, the Court should direct the investigation by appointing a legal commission.
It is held as under:
- “4. Admittedly, in this case, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure which was rejected by the trial court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 CPC.
- 5. The appellate court found that the trial court did not take into consideration the pleadings of the parties when there was no specific denial on the part of the respondents regarding the allegations of unauthorised possession in respect of the suit land by them as per Para 3 of the plaint. Bu the only controversy between the parties was regarding demarcation of the suit land because the land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial court was wrongly rejected.”
In Durga Prasad v. Praveen, AIR 1975 MP 196, 1975 MPLJ 801, it is held that in the case of encroachment, the appointment of a commissioner for demarcation is the proper course to determine the issue. It is held that the Court should order for appointment of a commissioner when there is a dispute of encroachment. The Division Bench of the High Court of Madhya Pradesh held that in the absence of an agreed map, the appointment of a Commissioner is necessary. It reads as under:
- “25. In cases where there is a dispute as to encroachment, the fact whether there is such an encroachment or not cannot be determined in the absence of an agreed map, except by the appointment of a Commissioner under Order 26,Rule 9 of the CPC. On 15.09.1996 the plaintiff, accordingly, applied for the issue of a commission to the Director of Land Records for a theodolite survey of the plaintiff’s leasehold area. The court by its memo dated 11-10-1966 enquired from Director of Land Records whether he was prepared to undertake the work. The Director of Land Records by his memo dated 01-12-1966 signified his willingness. The Collector’s memo dated 19-04-1969 shows that on the dates fixed for the purpose, neither the plaintiff nor any person authorized by him was present at the site. For reasons best known to the plaintiff, he did not press the application for commission vide order sheet dated 02-01-1979. The court accordingly, by its memo dated 10-01-1970 recalled the writ of commission issued to the Director of Land Records. The plaintiff,therefore rested his case on the plaint map, Ex.P-1,and his oral evidence. It is needless for us to stress that no finding as to the alleged encroachment can be reached on the oral evidence adduced by the plaintiff. The plaintiff has not examined any witness to prove that he had surveyed the area, and found on actual measurements that the pit EFGH market in the plaint map, Ex.P-1, fell within his leasehold area.”
It is Incumbent upon the Court itself to issue a Survey commission
In Jaswant son of Kashi Ram Yadav v. Deen Dayal, 2011 (2) MPLJ, 576 it is observed as under:
- “The moot question to be decided in this appeal is whether the property in question is of Plaintiff or Defendant. Both the parties are claiming ownership right on it. According to the Plaintiff he purchased the land vide registered sale deed Ext-P-2 from Deen Dayal and the suit property is a piece of that land but according to the Defendant it is part of the property which he purchased from Sudhir Shrivastava vide registered sale deed Ext-D-3. According to me, when there is dispute about demarcation of the property in question and its identity and both the parties are claiming it to be of their own on the basis of their document of title it was incumbent upon the Court itself to issue a commission by appointing an employee of revenue department not below the rank of Revenue Inspector to get it demarcated so that it can be identified. In the instant case my attention has been drawn by learned Counsel for Defendants to the application filed under Order XXVI, Rule 9, Code of Civil Procedure but the same has been rejected at the time of the consideration of temporary injunction application. To me learned trial Court erred in substantial error of law in rejecting the said application. The learned First Appellate Court has also committed the same error by not allowing the said application. Indeed, it was the duty of the Court itself to issue commission by appointing an employee of Revenue Department not below the rank of Revenue Inspector to get the land in dispute demarcated and for its identification no application is required for that purpose. In this context I may profitably place reliance on two decisions of Supreme Court
- Shreepat v. Rajendra Prasad and Ors. (2000) 6 Supreme 389 and
- Haryana Wakf Board v. Shanti Sharup and Ors. MANU/SC/7838/2008 : (2008) 8 SCC 671 and
- the Division Bench of this Court in Durga Prasad v. Praveen Foujdar and Ors. MANU/MP/0037/1975 : 1975 MPLJ 801; 1975 JLJ 440.”
In G.L. Purusotham v. Y. Nagaraju, 2016 (1) CCC (AP) 3 it is held – when both parties are alleging encroachment on their respective properties, appointment of advocate commissioner with the assistance of Mandal Surveyor is proper.
In Rachakonda Nagaiah v. The Government of Andhra Pradesh, 2013 (3) Civ. C.C. 107 (AP) the Court found it proper to have an application to survey the land for demarcation to adjudicate the dispute regarding boundaries.
In Prembai v. Ghanshaym, 2010 (3) MPLJ 345, relying on Haryana Waqf Board (supra) it has been held as under:-
- “12. On going through the pleadings of plaintiff made in para 2 of his plaint, this Court finds that specifically it has been pleaded by him that adjoining to his plot there is an open land and thereafter defendants’ house is in existence. It has been rightly pointed out by learned counsel for the appellants that the plaintiffs sale-deed (Ex. P/1) in which the description of his plot has been mentioned, in it also has been so described that on the northern side there is an open land and thereafter the house of Krishnagopal Mundra is in existence and, therefore, since plaintiff’s own case is that in between his plot and defendants’ house there is an open space, therefore, whether any cantilever is being projected on the plaintiffs plot or not, this was required to be ascertained by appointing a competent Commissioner by directing him to examine the spot and to give report as to whether any projection of cantilever covers any portion of the plaintiff’s property or not and similarly whether the doors, windows and the drains are Signature Not Verified Signed by: SHUBHANKAR trying to be opened by the defendants on the plaintiff’s property or not. Since this has not been done, according to me, the suit of plaintiff for injunction cannot be decreed. In this regard, the Division Bench decision of Durga Prasad (supra) placed reliance by the learned counsel for the appellants is quite relevant. There are two more decisions of Supreme Court on the point and they are Shreepat v. Rajendra Prasad, 2000 (6) Supreme 389 and Haryana Waqf Board v. Shanti Sarup, (2008) 8 SCC 671.”
In Ram Lal v. Salig Ram, JT 2019 (2) SC 106 , the Supreme Court said with regard to the necessity of the appointment of a Local Commissioner under Order 26 Rule 9 of the CPC as under:
- “18. In the totality of circumstances, in our view, for just and effectual determination of all the questions involved in the matter, the proper course is of issuing a fresh Commission and for direction to the Trial Court to decide the entire suit afresh on the issues as originally framed as also on the additional issues after taking the report of the Local Commissioner afresh and affording an opportunity to the parties to submit their objections, if any.”
Surveyor-Plan will not be ‘ipso facto’ Evidence
Surveyor-plan Attached to Commission Report will not be ‘ipso facto’ Evidence. If the commissioner could not vouchsafe its veracity, the surveyor should be examined.
