Marsella Ekka @ Marcela Toppo vs Sukhmani Devi @ Sukhmani Orain

Sanjay Kumar Dwivedi, J

Heard Mr. Rishi Pallava, learned counsel appearing for the petitioner and Mr. Ashutosh Anand, learned counsel appearing for the sole opposite party.

This petition has been filed under Article 227 of the Constitution of India for setting-aside the order dated 24.08.2023 passed in M.C.A. No.225/2019 in connection with Original Suit No.89/2017 by the learned Additional Civil Judge (Junior Division)-XXII, Ranchi by which he has been pleased to allow the petition dated 19.07.2019 filed by the plaintiff/opposite party under Order XXVI Rule 10 of the CPC.

At the outset, Mr. Ashutosh Anand, learned counsel appearing for the sole opposite party submits that the petition was meant under Order XXVI Rule 9 of the CPC, however, inadvertently Rule 10 was typed in the said petition. He submits that however the spirit of the impugned order is under Order XXVI Rule 9 of the CPC.

Mr. Rishi Pallava, learned counsel appearing for the petitioner submits that the plaintiff/opposite party has filed Original Suit No.89/2017 on 08.06.2017 with relief that a decree be passed declaring the plaintiff’s exclusive right, title and interest over suit property and demarcation of the respective share of the parties with the help of survey knowing Pleader Commissioner along with the cost of the suit and any other reliefs. He further submits that the defendant/petitioner appeared in the said suit upon receiving notice issued by the learned trial court. According to him, the suit property comprises of property situated in Village- Kathchocho, P.O. & P.S. Mandar, P.S. No.89, District- Ranchi under R.S. Khata No.31, Plot No.950 measuring an area of 5 decimals out of 14 ½ decimals and morefully described in the schedule. He then submits that the said property was gifted by the father of the plaintiff vide registered deed no.8570 dated 16.07.2002 after taking due permission under Section 46 of the Chotanagpur Tenancy Act from the learned Rent Suit Deputy Collector, Ranchi and since then the plaintiff came in absolute ownership and possession thereof. He submits that out of the said 14 ½ decimals, the plaintiff sold only 9 ½ decimals of land towards back portion by virtue of a registered deed of sale being deedno.4869 dated 10.04.2015 after taking permission under Section 46 of the Chotanagpur Tenancy Act to the defendant, who is petitioner herein and, thereafter, the plaintiff has got exclusive possession of the rest property in the front i.e. 5 decimals of land situated in Village Kathchocho and for that rent is also paid by the plaintiff. He elaborates his argument by way of submitting that the defendant/petitioner has no concern with the said land of 5 decimals which is in possession of the plaintiff/opposite party. He submits that false claim has been made in the plaint filed by the plaintiff about encroachment being made by the defendant/petitioner and in this background, a petition under Order XXVI Rule 9 of the CPC was filed by the plaintiff, which has been allowed by the impugned order. He submits that the learned trial court has wrongly allowed the said petition under Order XXVI Rule 9 of the CPC and in fact by way of that, the evidence has been tried to be collected for deciding the suit. He submits that the spirit of Order XXVI Rule 9 of the CPC has been violated and in view of that, the impugned order may kindly be set-aside. To buttress this argument, he relied upon the judgments passed in the case of Manoj Kumar Khatri and another v. Kumar Rohit Singh and another, reported in 2025 SCC OnLine Jhar 90 and in the case of Haridawari Prasad Lohani and others v. Shambhu Sharan Pd. Lohani, reported in 2025 SCC OnLine Jhar 108. Relying on the above judgments, he submits that if by way of appointing Pleader Commissioner, the evidence is tried to be collected, this Court can interfere with the impugned order. He further submits that the prayer was also made for appointment of the Pleader Commissioner and in view of that, said prayer cannot be allowed by way of interim order. To buttress this argument, he relied upon the judgment passed in the case of State of U.P. and others v. Ram Sukhi Devi, reported in (2005) 9 SCC 733. On these grounds, he submits that the impugned order may kindly be set-aside.

Per contra, Mr. Ashutosh Anand, learned counsel appearing for the sole opposite party opposed the prayer and submits that the learned Court has rightly appreciated the spirit of Order XXVI Rule 9 of the CPC and has been pleased to allow the petition. He draws attention of the Court to the plaint and submits that specific prayer is made in paragraph 8 of the plaint that the defendant/petitioner has started creating obstruction and is trying to encroach and occasion construction upon the property of the plaintiff/opposite party from 31.01.2016 onwards. He submits that if encroachment is done or being made, in that case the learned Court is competent to allow the petition under Order XXVI Rule 9 of the CPC. He further submits that the plaint was filed under the said provision of the CPC wherein, it has also been stated that with ulterior motive, the defendant/petitioner entered into the land of the plaintiff/opposite party and has also captured 8.5’ ft. wide land, which was not sold to the defendant. He submits that if such a dispute is there and the facts of that have been proved before the learned Court, the learned Court has rightly passed the order. He relied upon the judgment passed in the case of Germine Lakra @ Germaine Lakra v. Michel Bhut Kumar & others in W.P.(C) No.1291 of 2019 decided by the Coordinate Bench of this Court vide judgment dated 13.05.2019. He submits that encroachment aspect has been considered in the said judgment by the Coordinate Bench and appointment of Pleader Commissioner by the learned trial court was affirmed by the High Court. On these grounds, he submits that there is no illegality in the impugned order and, as such, this petition may kindly be dismissed.

In view of the above submissions of the learned counsel for the parties, the Court has gone through the materials on record including the contents of the plaint, the registered sale-deed in favour of the defendant/petitioner as well as petition filed under Order XXVI Rule 9 of the CPC and the impugned order. In light of the arguments of both the sides, it is an admitted position that the plaintiff/opposite party came in possession of 14 ½ decimals of such property by way of gift deed executed by her father and out of that, 9 ½ decimals of land from the back side has been sold out to the defendant/ petitioner. The dispute is further there with regard to 8.5’ ft. road and the allegations are made that encroachment has been made by the petitioner, who is defendant in the said suit. The suit has been instituted for declaring plaintiff’s exclusive right, title and interest over the suit property and to demarcate the respective share of the parties with the help of survey knowing Pleader Commissioner. The learned Court by the impugned order dated 24.08.2023 considered that the suit proceeding is at the stage of filing of the documents and framing of the issues. The learned Court found that the main dispute between the parties is encroachment upon the land in question and for measurement of land is in dispute and in that background, the learned Court has been pleased to allow the petition filed by the plaintiff/opposite party under Order XXVI Rule 9 of the CPC.

In view of that, this Court has to examine necessity of appointing the survey knowing Pleader Commissioner to the effect as to whether the appointment of the Pleader Commissioner for local inspection amounts to collect the evidence and whether the application of appointing the Pleader Commissioner for local inspection can lie before the commencement of trial.

Under Order XXVI Rule 9 of the CPC, the Court can appoint Commissioner for local inspection;

(a) If the Court deems that local investigation is necessary for elucidating any matter in dispute and;

(b) For ascertaining the market value of any property or any mesne profits or damages or annual net profits.

In light of the expression ‘Court deems a local investigation to be requisite’ appearing in the provision makes it apparent that the discretion lies with the Court whether to appoint a Court Commissioner or not. However, discretion is not unbridled. For ready reference, Order XXVI Rule 9 of the CPC is quoted herein below:

“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.”

In light of above provision, the meaningful reading of the above-referred provisions would lead to the inevitable conclusion that the

Commissioner’s report can be secured to elucidate the matter in dispute and the report of the Commissioner and the evidence taken by the Commissioner shall be the evidence. Accordingly, the very purpose of Order XXVI of the CPC is to secure evidence. Thus, the contention that the Commissioner cannot be appointed for local inspection and such a recourse amounts to collection of evidence overlooks the provision of Order XXVI Rule 10 of the CPC. This can be further justified from another perspective under Order XXVI Rule 10, as noted herein above. The report of the Commissioner and the evidence taken by him is a piece of evidence. The word ‘evidence’ is not defined either under the CPC or under the Indian Evidence Act. However, the Indian Evidence Act, among others, deals with oral and documentary evidence. The report of the Court Commissioner would be documentary evidence under the Indian Evidence Act. The party to the suit is entitled to produce the documentary evidence in support of his case, subject of course, to the relevancy of the document. In that view of the matter also, the contention that the appointment of a Commissioner for local inspection or scientific/forensic investigation, amounts to collections of evidence and for this reason the application is maintainable is not a valid, appears to be misconceived one. On the other hand, the party to a suit in an appropriate proceeding is enabled under the law to prove his case through the report of the Commissioner. Thus, in a given case that calls for the appointment of a Commissioner, if the application is rejected, the same amounts to a denial of permission to lead the evidence.

The  appointment  of  a  Commissioner  for  local  inspection,  or scientific/forensic investigation/expert’s opinion is indeed to secure the evidence and the same is not only permissible, but also desirable in certain cases. The order appointing a Commissioner can be made only if the Commissioner’s report becomes a relevant piece of evidence. That being the position, the contention that the appointment of Court Commissioner amounts to collection of evidence, has no merit.

Under the said provisions applicable for local inspection what is impermissible is the delegation of adjudicating power by way of example, if both parties claim to be in possession of the disputed property, the local inspection by the Commissioner cannot be ordered to ascertain the possession. The question of possession is to be decided by the Court. However, if one party alleges encroachment by another and another party denies such allegation, the Commissioner can be appointed to ascertain whether there is encroachment or not. In such a situation, the Commissioner is appointed to find out the nature of possession. The report based on local inspection will be a handy tool to decide the case relating to encroachment.

In the case in hand, the averment is made in paragraph 8 of the plaint that the encroachment is trying to be made and the same contention was also taken in the petition filed under Order XXVI Rule 9 of the CPC and in that view of the matter, instead of leading oral evidence of witnesses, the plaintiff has applied for local inspection and the same is permissible but also desirable in light of the spirit of Order XXVI of Rule 9 of the CPC.

The next question is at what stage of the proceeding in a suit, the application will lie? By way of reading the said provision, it is crystal clear that the said provision is not ‘stage’ centric. Thus, that provision can be invoked either before the commencement of the trial or after completion of trial. If the application is filed before the commencement of the trial, the Court having regard to the pleadings and records may allow such application before the commencement of the trial. If the report is necessary for consideration of an application seeking some interim measure before the commencement of the trial, the Commissioner can be appointed, if the case is made out for a such appointment. On the other hand, again having due regard to the pleadings and records, if the Court finds that there is every likelihood that after recording the evidence of the parties, the need to appoint the Court Commissioner may not arise or that the Court is of the view that it can take a call on the application, only after recording the evidence, then it may defer the order on the application till such time. Thus, the decision as to when the report of the Commissioner is to be secured must be taken having due regard to the facts and circumstances of the case.

In the above background, the discretion, though lies with the Court, as to appoint the Commissioner before the trial or after the trial, the decision must be taken with due regard to the possibility of reducing or eliminating the need to record the oral evidence of witnesses to prove an issue which could be effectively decided with the aid of the report. More often than not, in disputes relating to the existence of pathway, stream, pond, well or disputes relating to the boundary between adjoining holders, encroachment, easement of air and light, construction of building in violation of setback rules or relating to the authenticity of a document, signature/thumb impression to name a few by way of illustration, a report secured before the trial may cut short the trial inasmuch as the party relying upon the report may not examine multiple witnesses to prove the matters covered by the report. The party may simply rest his case based on his evidence and the report. In a given case, the appointment of the Commissioner before the commencement of the trial may facilitate a focused trial. In paragraph-4 of the judgment passed in the case of Bhimappa Rayappa Chougala v. Shrikant, reported in 2014 SCC Online Kar 12277 it has been held as under:

“4. xxx Only if the plaintiffs can show that the defendants have encroached upon their property, they would be entitled to the relief. Any amount of oral evidence is not a substitute or sufficient to prove the encroachment. To cut short the litigation to reduce recording evidence, the trial Court in its wisdom, thought if fit to appoint a Commissioner even before the commencement of the trial. That is how the duration of the litigation could be curtailed and speedy disposal of the civil matter could be achieved.”

In light of the above and for the reasons as discussed herein above, the Court finds that the dispute between the parties is relating to the alleged encroachment and if such a dispute is there, the learned trial court is within his jurisdiction to pass such order for appointment of the Pleader Commissioner.

In view of the above, the application for appointment of Commissioner cannot be rejected on the premise it amounts to collection of evidence or on the premise that it is not permissible looking into the form of the suit. It is the discretion of the Court. If the Court deems it fit that the report is necessary to elucidate the matter in dispute then the application for local inspection has to be allowed.

A Co-ordinate Bench of this Court has also taken this view on which the reliance has been placed by the learned counsel appearing for the opposite party in the case of judgment Germine Lakra @ Germaine Lakra (supra).

So far as the judgments relied by Mr. Rishi Pallava, learned counsel appearing for the petitioner in the case of Manoj Kumar Khatri and Haridawari Prasad Lohani (supra) are concerned, they are based on different facts and circumstances of the case. In paragraph 7 of the judgment passed in the case of Manoj Kumar Khatri (supra), this aspect of the matter has been considered what has been discussed herein above. That case was based on the purchase of the sale deed and dispute was with regard to encroachment, was not there and identical is the situation in the case of Haridawari Prasad Lohani (supra) and in view of that, two judgments relied by Mr. Rishi Pallava, learned counsel for the petitioner, is not helping the petitioner.

The Court is in agreement of the argument of Mr. Rishi Pallava, learned counsel appearing for the appellant that by way of interim protection, main relief cannot be allowed, however, so far as the facts of the present case as discussed herein above is concerned, in light of the provision under Order XXVI Rule 9 of the CPC, the discretion of the Court is there to appoint the Pleader Commissioner either before the commencement of the trial or after completion of the trial and, as such, the contention of the learned counsel for the petitioner of allowing the petition, will amount to allow the main prayer, is not being accepted by this Court.

In light of the above discussions, reasons and analysis, this Court comes to the conclusion that the learned Court has rightly passed the order and that order is not required to be interfered by this Court.

Accordingly, this petition is dismissed.