Geeta Devi and Others vs Satyanarayan and Others

Mohammad Rafiq, J.—This writ petition has been filed by Smt. Geeta Devi and Sitaram, challenging the order dated 20.08.2014 passed by the Additional District Judge No. 2, Jhunjhunu, in Civil Suit No. 26/2013 (61/2006 - 40/2009). The court, by aforesaid order, has allowed the application filed by plaintiff-respondent No. 1, for getting the disputed haveli and shop existing in village Tain, Bissau, surveyed from the Archaeological Survey of India so as to determine whether or not the same are more than 200 years old, and directed Archaeological Survey of India, New Delhi, to conduct survey of the aforesaid premise at the cost of the plaintiff-respondent for that purpose.

Aforesaid application has been filed by plaintiff-respondent in Civil Suit for declaration, partition and permanent injunction against defendant-petitioners as well as non-petitioner No. 2 with the averments that the property in question comprising of a haveli and shop in village Bissau was undivided ancestral property of plaintiff and defendants. The defendant-petitioners were now claiming the same to be their self-acquired property. The defendants filed written statement and admitted therein existence of the haveli and shop but denied other contents. It was maintained by them that property in question was self-acquired property of late Shri Chiranji Lal, husband of defendant-petitioner No. 2. The application was thus opposed by the defendants-petitioners. However, learned trial court has illegally allowed the application by the impugned order.

Shri Mahendra Goyal, learned counsel for defendants-petitioners, argued that the trial court has failed to correctly appreciate the provision of Order 26 Rule 9 of the Code of Civil Procedure, which provides for appointment of Commissioner to make local investigation for the purpose of elucidating any matter in dispute. From the material placed on record, it is evident that dispute was whether the property in question was ancestral in which the plaintiff had 1/3rd share and burden of proving the same was on the plaintiff. The plaintiff was required to establish this fact by leading evidence that the property was ancestral one. The provisions under Order 26 Rule 9 CPC could not have been resorted to by the plaintiff to collect the evidence through the Commissioner. The impugned order would reveal that no such satisfaction has been recorded by the trial court that local investigation was requisite for the purpose of elucidating the matter in dispute. The trial court has not appreciated that the matter was at the stage of plaintiff''s evidence and at that stage when the evidence of both the parties were not complete, there was no justification for the trial court to entertain the application. If after completion of evidence of the parties, the court were of the view that appointment of Commissioner for local investigation was necessary to elucidate the matter, it could have at that stage invoked the provisions under Order 26 Rule 9 CPC but not during the course of evidence of the parties.

It is argued by learned counsel for defendant-petitioners that Archaeological Survey of India, being the Government of India organization, could not have been called upon to carry out the survey of the building in question to determine its age in a private dispute. The Archaeological Survey of India is not meant to carry out any such activity. It is meant to conduct archaeological explorations, excavations, maintenance, conservation and preservation of protected monuments, Archaeological sites and the remains of national importance. Learned counsel for petitioners submitted that whether or not the disputed building was more than 200 years old, is a question of fact, which has to be decided on the basis of evidence led by the parties. Since this was the case set up by the plaintiff, burden lay on him to prove this fact. Learned counsel for defendant-petitioners, in support of his arguments, relied on judgment dated 05.12.2014 of this Court in Union of India (UOI) and Another Vs. Kripal Industries, and Capricorn Life Style Private Limited v. Sunil Kumar - S.B. Civil Writ Petition No. 4652/2013.

Per contra, Ms. Uma Agarwal, power of attorney holder of respondent No. 1, appeared in person and argued that evidence of the plaintiff has already been recorded during his lifetime through Commissioner and the defendant-petitioners had opportunity to cross-examine him. Late Shri Satyanarayan was the original plaintiff. Chiranjilal, father of defendants, and plaintiff Satyanarayan were real brothers. The plaintiff was residing in village Tain Bissau in the disputed haveli from 1945 when he shifted to Mumbai. They were both born and brought up in the disputed ancestral haveli. Additional construction was raised in the haveli in the year 1970. Father of the plaintiff had expired in the year 1973. Apart from the plaintiff, the only evidence that remains is that of his power of attorney i.e. Ms. Uma Agarwal herself, who is appearing in person. Survey by expert body like Archaeological Survey of India was necessary to determine the age of the building because the defendant has been asserting that the disputed property was self acquired property while, according to the plaintiff, it was an ancestral haveli. This was the bone contention between the parties because according to the plaintiff, the haveli is 200 years old. Determination of age of haveli by the experts would enable the trial court to effectively decide the controversy between the parties. Ms. Uma Agarwal, power of attorney holder of plaintiff, has relied on judgment of this court in Shabbir v. Parwati Bai and Another, and that of Himachal Pradesh High Court in Rajinder Parshad and Others Vs. Lachhman Dass and Others, , and that of Karnataka High Court in B.S. Nazir Hassan Khan Vs. Aswathanarayana Rao and Others, . While citing judgment of this court in Shabbir, supra, Ms. Uma Agarwal argued that appointment of Commissioner can be made at any stage and that cannot be denied merely because recording of evidence has not begun. Reliance has also been placed on behalf of the plaintiff-respondent on the judgment of the Karnataka High Court in R. Narasimhaiah v. Smt. Sakammanamma and Another - 2001 AIHC 88 (Karnataka High Court), wherein the High Court held the rejection of the application for appointment to find out actual position of property in dispute, on the ground that evidence had not commenced, to be not valid.

Ms. Uma Agarwal, power of attorney holder of plaintiff, argued that her father has died about two-and-a-half-year ago at the age of 82 years. Had he been alive, he would have by now attained the age of 85 years. Most of persons of his age in the village have died. Besides, she was born and brought up in Mumbai. She does not stay in village and, therefore, she cannot possibly find out the persons old enough to give evidence as to the age of the building.

I have given my anxious consideration to rival submissions and perused the material on record.

The trial court was persuaded to issue impugned direction to the Archaeological Survey of India because of the assertion made by the plaintiff was that the disputed haveli was 200 years old whereas as per assertion of the defendant that it is only 40 years old. Order 26 Rule 9 of the CPC is the relevant provision with regard to appointment of Commissioner. It provides that 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 the ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, it may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the court. Aforesaid provision is subject to a proviso which stipulates 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.

The High Court of Judicature for Rajasthan in exercise powers conferred upon it by Article 227 of the Constitution of India and other powers enabling it in that behalf, with approval of the Government of Rajasthan, have promulgated the General Rules (Civil), 1986, which have been published in the Official Gazette of Rajasthan on 25.12.1986. Rule thus came into force from that date. Rule 67 of the General Rules (Civil), 1986, reads thus,

"67. Particulars to be given in the order for local investigation.-When issuing a commission for making a local investigation under Order XXVI, rule 9, the court shall define the points on which the Commissioner has to report. No point which can conveniently and ought to be substantiated by the parties by evidence at the trial shall be referred to the Commissioner." 10. The aforesaid Rule provides that no point which can conveniently and ought to be substantiated by the parties by evidence at the trial, shall be referred to the Commissioner. This Court in Union of India v. Kripal Industries, supra, had the occasion to consider aforesaid provision vis-�-vis the power of the court to direct the commission for making local investigation under Order 26 Rule 9 CPC. In aforesaid case, it was observed by this court that according to Rule 9 of Order 26 CPC, the trial court is vested with discretion to appoint Commissioner but said discretion should not be exercised where the point, which is required to be referred to the Commissioner, can conveniently be substantiated by the parties by evidence at the time of trial. It was held that such power cannot be exercised by the court to insist upon the parties to collect evidence where it can get evidence. In Capricorn Life Style Private Limited, supra, this court, while considering this very aspect of the matter, observed in para 11 and 12 of the judgment as under:--

"11. From a bare look at the record of the writ petition it is apparent that while the plaintiff is claiming right of way through petitioner''s land, the case of the petitioner is that the alleged way does not exist and/or the plaintiff has alternative way to reach his land and, therefore, no right in this regard can be claimed by him. From the photographs produced by the petitioner, it is now apparent that a permanent boundary wall exists around the land belonging to the petitioner; the application (Annexure-10) has been filed by the petitioner without indicating the issue in dispute and the same has been filed with very general observations pointing out the dispute between the parties, regarding existence of the way, claim of the petitioner regarding the status of his land/boundary wall etc. and then a prayer has been made that Commissioner be appointed so that factual position may come before the court.

In any dispute of the present nature, unless on account of the oral and documentary evidence and/or the factual matrix, which comes on record, the court feels the requirement for appointment of a Commissioner for clarification of a particular aspect of the matter, just for the sake of bringing on record the factual position, which otherwise is the burden of the parties to a suit, a local Commissioner cannot be appointed. The principle that Commissioner cannot be appointed for collecting evidence is well established and once the trial court having considered the entire aspect and found no reason or cause to sent a Commissioner or to have the site inspected, the order cannot be said to be in violation of provisions of law or suffering from any jurisdictional error, requiring interference by this Court."

In Shabbir, supra, on which reliance has been placed by the plaintiff-respondent, the court was dealing with a situation where there was no documentary evidence on record to ascertain the clear picture of the site and, therefore, directed appointment of the Commissioner. In Balvinder Kaur Vs. Executive Engineer Irrigation Dept. and Others, , the plaintiff filed a suit for permanent injunction praying that the defendants be restrained from cutting the trees, though the same are not obstructing the construction of pucca water course. The defendants on the contrary asserted that cutting of trees planted on the existing land of the plaintiff, were necessary for construction of pucca water course and that the plaintiff would be compensated for the same. It was in that view of the matter that the court appointed Commissioner to make physical verification of the site so as to determine whether the trees were required to be cut for construction of pakka water course. The appointment of Commissioner in those facts was not interfered with.

In Rajinder Parshad, supra, it was held that report of the Commissioner can be used for limited purpose to appreciate the evidence. Said report cannot be made sole basis and foundation for judgment in dis-regard to evidence on record. Report of local commissioner was merely piece of evidence in the case and it does not bind court. The Himachal Pradesh High Court in Rajinder Parshad, supra, held that report of the Commissioner, even if procured, is not going to affect the discretion of the court because such report does not bind the court. It is only meant to be used for appreciating the evidence otherwise available on record.

Archaeological Survey of India is an organization of the Government of India, under the Ministry of Culture, meant for archaeological researches and protection of the cultural heritage of the nation. Maintenance of ancient monuments and archaeological sites and remains of national importance is its prime concern. What is to be therefore seen is whether the trial court by the requisitioning such an organization has acted in excess of or beyond its power under Rule 9 of Order 26 of the CPC or for that matter has passed such direction in violation of Rule 67 of the General Rules (Civil), 1986. The purpose for which appointment of Commissioner under Rule 9 of Order 26 CPC can be split into following four parts:--

"(i) for the purpose of elucidating any matter in dispute;

(ii) for the purpose of ascertaining the market value of any property;

(iii) for the purpose of ascertaining the amount of any mesne profits or damages, and

(iv) for the purpose of ascertaining damages or annual net profits."

It is in any of these situations that the court may issue the commission to make such investigation and submit the report to it. Rule 67 of the General Rules (Civil), 1986, by virtue of proviso to Rule 9 of Order 26 CPC, regulates the discretion of the court by providing that no point, which can conveniently and ought to be substantiated by the parties by evidence at the trial, shall be referred to the Commissioner.

The Andhra Pradesh High Court in Parepally Satyanarayana Vs. Vutukuri Meeneder Goud and Another, , held that Commissioner cannot be appointed to find out as to who is in possession of property but he can certainly be appointed to make local investigation to ascertain facts or other materials which are found in property and to make a report in regard to that matter to Court.

In Capricorn Life Style Private Limited, supra, the dispute was as to who was in possession of the suit plot on the relevant date. Assertion of plaintiff in Capricorn Life Style Private Limited, supra, was that the only way available to the plaintiff-respondent is from the western side of his land and for that purpose it was necessary to seek Commissioner''s report and more particularly when the land of the defendant-petitioner was sold out. Besides, it was also claimed that on all the four sides of petitioner''s land, there is boundary wall, a part of which, has been demolished on the eastern side by the plaintiff after filing of the suit. The trial court rejected the application of defendant for appointment of Commissioner holding that matter pertains to existence of way and right to use the same and for that purpose, defendant himself can produce site map and, so far as the right of user, which of the way was the main way and factually which way was being used are all subject matter of evidence.

In Debendranath Nandi Vs. Natha Bhuiyan, , the Orissa High Court has observed thus:--

"...The object of local investigation under the above provision is to obtain evidence which from its peculiar nature can best be had from the spot itself. Such evidence enables the Court to properly and correctly understand and assess the evidence on record already recorded. It clarifies or explains any point which is left doubtful on the evidence on record. The trial Court''s decision in the present case to depute a Commissioner for the above purpose is indicative of the fact that in view of the evidence before the Court it considered it necessary to obtain a report from the Commissioner about the correct and actual position of the disputed property. In view of the rival averments made by the parties and in view, of the evidence on record, a Commissioner''s report of the local investigation was absolutely necessary in this case..." 18. In R. Narasimhaiah, supra, the Karnataka High Court, while considering similar controversy, observed as under:--

"...that local investigation by a Commissioner can be mad in exercise of the power under O.26, R. 9, C.P.C., where visit to the spot is necessary. That would be a local investigation requisite or proper. When the report would be necessary to appreciate the evidence on record, a commission can be issued in proper case. Therefore, normally writ is to be issued to a Commissioner for local investigation to appreciate the evidence already recorded. There may be departures from the normal rule for issue a commission also. For illustration: Where evidence is necessary to know the depth of water in a particular season a Commissioner can be deputed even though evidence has not been recorded. Where it is to be found as to on which plot the disputed land lies, a writ can be issued to any person to relay the same even though no evidence is required if the Court finds that the parties themselves cannot produce evidence to that effect. Since issue a writ to a person for local investigation would depend upon the facts and circumstances of each case, no hard and fast rule can be laid down. This much can be said that the basic pre-requisite for issue of such a writ is the satisfaction of the Court that a local investigation is requisite or proper. This satisfaction is to be judicial satisfaction based on reason." 19. The object of local investigation under Order 26 Rule 9 is to collect evidence, which evidence from its peculiar nature, cannot be taken in Court but could be best taken on the spot and that this evidence will elucidate a point, which may otherwise be left in doubt or ambiguity on record. The Commissioner in effect is a projection of the Court appointed for a particular purpose. A party has a right to place evidence which he could require to substantiate his case before the Court and it is the duty of the Court to receive such evidence unless there are other justifiable factors in law to decline to receive it. This right of the party to adduce evidence gets adjudicated in the interlocutory proceedings under Order 26 Rule 9. The appointment of Commissioner in the present case has not been directed by the trial court for ascertaining the possession as to which of the parties are in possession because this is not disputed even by the plaintiff that the defendant is having possession of the disputed property. This has become necessary to determine the age of the haveli because plaintiff claims it to be an ancestral property, whereas defendants claim that it was self-acquired property. Bone of contention between the parties is whether the haveli in dispute is more than 200 years old, as asserted by the plaintiff or it is only 40 years old as per case of the defendant. The original plaintiff, who is reported to have died two-and-a-half-year ago at the age of 82 years and present matter is being prosecuted by Ms. Uma Agarwal, his power of attorney holder and also his daughter, who is practicing advocate in Mumbai. She was born and brought up in Mumbai. Her inability to produce multiple witnesses to prove the age of the haveli in question, may not be an impediment for the trial court to direct the expert body like Archaeological Survey of India to determine approximately how old the haveli is, which can only prove the actual age of the haveli, whether it is only 40 years old or much older than that or even 200 years old, as is being claimed by the plaintiff.

Now lastly comes the question, whether a Commissioner can be appointed even before completion of evidence of parties. In B.S. Nazir Hassan Khan, supra, the trial court had rejected the application for appointment of Commissioner on the ground that it was belatedly filed at the stage of final hearing and the Karnataka High Court upheld that order. But ratio of that judgment cannot be stretched to contend that application of the petitioner for appointment of Commissioner can be entertained only after evidence of both the parties is concluded. In R. Narasimhaiah, supra, it was held that although normal rule is that the Commissioner has to be appointed for local investigation to elucidate the evidence already recorded but that rule can be departed from in situation like in the present case where no party can claim to wield expertise to decide the exact age of the building and when the extent of dispute is so enormous that while on one hand the construction is claimed to be 200 years old as also being ancestral, on the other hand it is claimed to be only 40 years old and self-acquired. There is no prerequisite condition of law that Commissioner can be appointed only after evidence of the parties is over. And the normal rule that Commissioner can be appointed for local inspection only with a view to elucidating already recorded evidence, can be departed from for just and reasonable cause.

I therefore do not find any infirmity in the order passed by learned trial court in directing inspection of the haveli by an expert body. However, it is made clear that the expenses to be incurred on such determination of age of the haveli in dispute by the Archaeological Survey of India would be born by the plaintiff.

Writ petition is accordingly dismissed with no order as to costs. Stay application is also dismissed.