Sunil Wali vs Maharaj Krishan Raina

The petitioner filed a suit for permanent prohibitory injunction restraining the respondent from interfering with 10 marlas of land comprising in

survey No. 59 min situated at village Dhomal Patta Bohri . It is averred that the plaintiff has purchased this land from the owner by virtue of sale

deed dated 1671999. On the other hand, respondent also claims to be in possession of 10 marlas of land situated in Khasra No. 59min at village

Domal Tehsil and District Jammu. He also claims to have a sale deed executed in his favour in respect of the same land. The sale deed executed in

favour of petitioner is dated 1671999 whereas the sale deed executed in favour of respondent is dated 1182003. Respondent claims to have

raised plinth over the suit land and installed a hand pump on it.

The trial court vide order dated 2812006 after considering the application for temporary injunction, directed the parties to maintain status quo till

the disposal of civil suit.

An appeal has been preferred against the aforesaid order before the Additional District Judge, Jammu. The appellate court after hearing the

parties, vide order dated 1032008, declined the prayer of respondent appellant for vacating the order of status quo passed by the trial court. The

appellate court after hearing the parties, directed that the trial court shall send a person belonging to Revenue Department as Commissioner who

would give exact identification of the land purchased by the parties. Accordingly, Tehsildar (Settlement) Gole, Jammu was appointed as

Commissioner to look into the fard issued by the department and after conducting on spot verification in presence of both the parties, inform the

court of City Judge, Jammu about the same. It is this order of the appellate court, which is the subject matter of challenge in this revision petition.

Undoubtedly, the courts have the power to appoint commissioner under Order 26 Rule9 CPC. For facility of reference, Rule9 is quoted

hereinbelow:

Commission to make local investigations:

In any suit in which the court deems a local investigation to be requisite or proper for the purpose of elucidation any matter in dispute , or of

ascertaining the marked 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 Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by

such rules.

The import of Rule9 reveals that the Court can send a Commissioner for local investigation for the purpose of elucidation any matter in. dispute, or

of ascertaining the market value of the property.

For the purpose of present controversy, it has to be understood, as to whether the Commissioner has been appointed for the purpose of

elucidation of any matter in dispute or for any other purpose, not covered under the rules. The elucidation would require clarification with regard to

any property whose identification is required to be obtained. Elucidation would not mean a determination, as to whether a person is in possession

of the land or not. Elucidation is only to clarify the position. It does not cover the case where the determination is required to be done by the local

Commissioner as to who is in possession of the property. It is settled principle of law that the Courts cannot delegate judicial power to a

Commissioner. In essence, such a discretion cannot be exercised in a case where the point of dispute which is referred to a Commissioner Can be

conveniently substantiated by the parties by leading their evidence before the court at the trial of the suit. It in essence would mean delegating its

judicial function of trial of any material issue in a suit, which the court is itself bound to try. Two Judgments of this Court passed in Civil Revision

No. 118/03 and Civil Revision No.^ 76/2001 titled Ashok Singh and Ors Vs. Sujan Singh and Ors dated 15112003 and Mohd. Yousuf Lone Vs.

Ahmed Lone and another dated 1522002, which have been referred by the petitioner clearly make such a distinction regarding elucidation and

determination.

In the present case, the appellate court has directed the Commissioner to give an exact identification of the land purchased by the parties. Both the

parties claim possession of the land situated in same khasra number. It is not the case where the parties claim their possession in two different

khasra numbers, for which the local Commissioner will have the power to elucidate this fact.

I, therefore, allow this revision petition and set aside the order of appellate court dated 1032008, whereby he has appointed local Commissioner

for identifying the land in dispute. The direction of the trial court upheld by the appellate court regarding status quo, is confirmed. Parties to appear

before the court below on 1222009.