What remedy is available to party who is not satisfied with report of court commissioner?

It has also been held by this Court that merely because a Court Commissioner is appointed, it will not prejudice the interest of either of the parties. It has been held that if any of the parties is aggrieved by the report of the Court Commissioner, an opportunity would be available to that party to cross examine the Court Commissioner and to point out as to how his conclusions were not correct. It has further been observed that the party who was not aggrieved would also prove how his conclusions are correct.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6497 of 2009

Decided On: 14.03.2011

Appellants: Kolhapuri Bandu Lakade Petitioner
Vs.
Respondent: Yallappa Chinappa Lakade, Decd., thru' Pooja @ Poojari Y. Lakade and Ors.

Hon'ble Judges/Coram:
B.R. Gavai, J.

 Citation: 2011(3)ALLMR599, 2011(3)BomCR807, 2011(3)MhLj348

1. Rule. Rule made returnable forthwith. Heard by consent.

2. The Petitioner challenges the order dated 7th July, 2009 passed by the learned

8th Joint Civil Judge, Senior Division, Pune below Exhibit 35 in Regular Civil Suit No. 513 of 2007, thereby rejecting the application filed by the present Petitioner for appointment of Court Commissioner.

3. The facts in brief giving rise to the present Petition are as under:

The Petitioner­Plaintiff has filed the Suit, being Regular Civil Suit No. 513 of 2007, for declaration and restoration of possession after removing the encroachment of the Respondent­Defendant. The Plaintiff in the plaint has contended that the suit land is owned by the Plaintiff from the period of his ancestors; that the said land has been given City Survey No. 1894; that the Plaintiff has constructed two rooms on the said land and the room admeasuring 20 ft. x 10 ft. on the northern side was given to the Respondent­Defendant for residing therein for certain time without any consideration. It is contended that though the Defendant had assured the Plaintiff that after making alternate arrangement he will return the said room, he was refusing to do so for last 10 to 12 years. In this premise, the Plaintiff has prayed for the reliefs as claimed hereinabove. The Suit of the Plaintiff is resisted by the Defendant. It has been contended by the Defendant that the lands bearing Survey No. 315B and Survey No. 317B/1 were given by the British Government in the year 1911 to the persons belonging to Vaidu Nomadic Tribe. It was contended that for the sake of convenience, the land was given in the name of ancestors Shankar Laxman Pawar and as such the name of said Shankar Laxman Pawar and his brothers and sisters were recorded in the 7/12 Extract. The contention of the Plaintiff, that he was the owner of the land was denied by the Defendant. It is the contention of the Defendant that the house in which he is residing has been owned by him since the period of his ancestors. It is the contention of the Defendant that in the records, the said house has been registered as City Survey No. 1895. The Defendant has also filed a counter claim for a declaration that the property, as stated in the counter claim, was the property in possession of the Defendant, from the period of his ancestors. A declaration was prayed in the counter claim that the Plaintiff had no relation with the house on which the Defendant was residing and further for an injunction restraining the Plaintiff from disturbing the peaceful possession of the Defendant.

4. During the pendency of the Suit, two applications came to be filed for temporary injunction; one by the Plaintiff and the other by the original Defendant. The application of the Plaintiff was rejected and that of the Defendant was allowed. Being aggrieved thereby, an Appeal was carried before the learned District Judge. The same was also dismissed. Being aggrieved thereby, the Petitioner approached this Court by way of Writ Petition No. 1440 of 2009. The said Petition was disposed of by the order dated 6th March, 2009. Thereafter, the application below Exhibit 35 in Regular Civil Suit No. 513 of 2007 came to be filed for appointment of the City Survey Officer, Pune as "Court Commissioner". The same was rejected and hence the present Petition.

5. Mr. Godbole, the learned Counsel appearing on behalf of the Petitioner, submits that the issue involved in the present Petition is as to whether the construction of the Respondent­Defendant is on City Survey No. 1894 or City Survey No. 1895. The appointment of the Taluka Inspector of Land Records as a "Court Commissioner" was necessary in as much as the report of the said Commissioner would facilitate the Court for finding out an actual position. Mr. Godbole submitted that the issue involved in the present Petition is the issue involved in various matters and, therefore, has taken me through various pronouncements on the issue. The learned Counsel has relied on the judgments of the learned Single Judges of this Court, namely, by M.S. Vaidya, J., in the case of Tajmulhussain s/o. Mulla Mumtaz Hussain v. Satish s/o. Bhanudas Chavan, reported in MANU/MH/0674/1993 : 1994 (3) Bom. C.R. 317, various judgments delivered by S.T. Kharche, J., in the cases of Ushabai w/o. Sharadchandra Bannore v. Wasudeo s/o. Baliramji Mehare and Ors., reported in MANU/MH/0687/2002 : 2003 Mh.L.J. 594, Ramchandra Bhikaji Jagtap v. Dudharam Langruji Padvekar, Dead, Thru' L. Rs. and Ors., reported in 2003 B.C.I. 659, and Kashinath Ramkrishna Chopade v. Purushottam Tulshiram Tekade and Ors., reported in MANU/MH/0867/2005 : 2005 (6) Bom.C.R. 267, by A.P. Bhangale, J., in the case of Yeshwant Bhaduji Ghuse v. Vithobaji Laxman Ladekar, reported in 2010 (3) Mh.L.J. 956, by S.B. Deshmukh, J., in the case of Vij Kamagar Sahakari Patsanstha Ltd. v. Ramkrushna Dhondiram Thorat and Ors., reported in MANU/MH/0999/2008 : 2009 (1) Bom.C.R. 880, and the judgment of the v. Apex Court in the case of Haryana Waqf Board v. Shanti Sarup and Ors., reported in MANU/SC/7838/2008 : (2008) 8 SCC 671.

6. The learned Counsel further submitted that the view taken by the learned Single Judge of this Court, namely, Khanwilkar, J., in the case of Sanjay s/o. Namdeo Khandare v. Sahebrao s/o. Kachru Khandare and Ors., reported in MANU/MH/0893/2000 : 2001 (1) Bom.C.R. 800, is per incurium since it does not take into consideration the provisions of Section 75 and Order XXVI Rule 9 of the Code of Civil Procedure in correct perspective. He further submits that the view taken by me in the case of Pandurang Nandlal Chandak and Anr. v. Sandip Mukundrao Pensalwar and Anr., reported in 2009 (2) Mh.L.J. 487, is also per incurium, in as much as the same does not take into consideration the provisions of Section 75 and Order XXVI Rule 9 of the Code of Civil Procedure in correct prospective and also does not notice the judgment of the Apex Court in the case of Haryana Waqf Board cited supra, which is prior to the decision in Pandurang's case, cited supra.

7. As against this, Mr. Rahul Kashid, the learned Counsel appearing for the Respondents, on the contrary submits that the learned trial Judge has rightly rejected the application, inasmuch as it was in the nature of collecting evidence in support of the case of the Plaintiff and, therefore, no interference could be warranted.

8. Though various judgments of various learned Single Judges of this Court including my judgment have been pointed out by Mr. Godbole. I do not think that a reference to those judgments would be necessary in view of the judgment of the Apex Court in the case of Haryana Waqf Board cited supra. In the said case a Suit was filed by the Punjab Waqf Board for declaration and injunction. The suit of the Plaintiff claiming that the Defendants had encroached in suit property was dismissed by the trial Court on the ground that the Board had failed to prove that the Respondents have encroached upon the land belonging to the said Board. The Appeal preferred there against was dismissed by the Appellate Court. The Second Appeal filed before the High Court was dismissed summarily on the ground that the Second Appeal stood concluded by the concurrent findings of facts. In this background, the Apex Court observed thus:

3. The dispute that was raised by the parties before the court was whether the Respondent had encroached upon any land belonging to the Appellant Board. Therefore, it cannot be in dispute that the dispute was in respect of the encroachment of the suit land.

4. Admittedly, in this case, an application was filed under Order XXVI 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 XXVI Rule 9 CPC.

9. Observing as aforesaid, the Apex Court set aside the judgment and order of the High Court and while setting aside the same, the Apex Court observed that the High Court ought to have considered whether in view of the nature of dispute, the Local Commissioner should be appointed for the purpose of demarcation in respect of suit land. As such the matter was remitted back to the High Court for deciding it in the light of the observations made by the Apex Court.

10. The learned Single Judge of this Court, F.M. Reis, J., in the case of Girish Vasantrao Bhoyar and Anr. v. Nimbaji Warluji Bambal, reported in 2009 (4) Mh.L.J. 371, has held that in order to determine whether there is an encroachment, it is always desirable to get the measurements of the land encroached upon. Another learned Single Judge of this Court, A.P. Bhangale, J., in the case of Yeshwant Bhaduji Ghuse v. Vithobaji Laxman Ladekar, reported in 2010 (3) Mh.L.J. 956, though has not noticed the judgment of the Apex Court in the case of Haryana Waqf Board cited supra, but relying on the earlier judgment of this Court delivered by S.T. Kharche, J., in the case of Ushabai w/o. Sharadchandra Bannore cited supra, has observed thus:

8. In Ushabai Sharadchandra v. Wasudeo and Ors., reported in MANU/MH/0993/2003 : 2004 (2) Mh.L.J. 594, this Court has held that the maps or plans made for the purpose of any cause must be proved to be accurate. The onus of proving that such a map is accurate lies on the party who produces it. The maps must be proved by the person who has prepared them. In case of dispute of an encroachment or dimension of a site, the first essential is to get an agreed map and if the parties cannot agree on one, a Commissioner must be appointed to prepare the same. In the absence of such a map, the decree is probably meaningless and execution means virtually starting the case overall again.

11. Even prior to the judgment of the Apex Court in the case of Haryana Waqf Board cited supra, the learned Single Judge of this Court, M.S. Vaidya, J., in the case of Tajmulhussain cited supra has observed thus:

9. ...

In a suit, in which the cause of action is founded on the alleged encroachment of a particular land and in which the determination of the boundary line between the two adjoining properties is the only issue, the Court could hardly decide such a matter on its own without any dependable expert assistance.

12. The learned Single Judge has further observed that:

10. It may be noted here that making of such an order for appointment of the Commissioner would not have prejudiced the interest of either of the parties, because it was only in that eventuality, that it was possible for the Court to arrive at a proper conclusion. If at all any party was aggrieved by the report given by the Commissioner so appointed by the Court, an opportunity would have become available to that party to cross­examine the Commissioner and to point out how his conclusions were not correct. The party, who was not aggrieved could also prove how his conclusions were correct.

13. Another learned Single Judge of this Court, namely, S.T. Kharche, J., in the case of Kashinath Ramkrishna Chopade cited supra has observed thus ;

13. In view of the aforesaid legal position, it appears to be absolutely necessary that the City Surveyor ought to have been appointed when the question arises as to whether any encroachment has been made or not. The appointment of City Surveyor or Cadastral Surveyor for taking joint measurement of the property owned by the Plaintiff and Defendant for the purpose of local investigation under Order XXVI, Rule 9 of the Code of Civil Procedure not only become relevant but appears to be absolutely essential for the just decision of the case.

14. It can thus clearly be seen that the Apex Court in the case of Haryana Waqf Board cited supra in unequivocal terms has held that in the case of demarcation of disputed lands, it is appropriate for the Court to direct the investigation by appointing a Local Commissioner as provided under Order XXVI, Rule 9 of the Code of Civil Procedure. The other learned Judges of this Court, namely, M.S. Vaidya, J., S.T. Kharche, J., A.P. Bhangale, J., F.M. Reis, J., have also held that in case of dispute of encroachment of a site, an appointment of Court Commissioner who could be City Survey Officer or Cadastral Surveyor for taking joint measurement of the property owned by the Plaintiff and Defendant for the purpose of local investigation under Order XXVI, Rule 9 of the Code of Civil Procedure would be necessary for the just decision of the case. It has also been held by this Court that merely because a Court Commissioner is appointed, it will not prejudice the interest of either of the parties. It has been held that if any of the parties is aggrieved by the report of the Court Commissioner, an opportunity would be available to that party to cross examine the Court Commissioner and to point out as to how his conclusions were not correct. It has further been observed that the party who was not aggrieved would also prove how his conclusions are correct.

15. In so far as judgment delivered by the learned Single Judge of this Court, namely, Khanwilkar, J., in the case of Sanjay Namdeo Khandare cited supra is concerned, in the said matter the appointment of the Commissioner, who was sought to be appointed, was for the purpose of finding out as to who was in actual possession of the suit land. In that view of the matter, it appears that the learned Judge has held that the Court Commissioner cannot be appointed for collecting the evidence.

16. In so far as my judgment in the case of Pandurang Nandlal Chandak cited supra is concerned, it is clear from the said judgment that the judgment of the Apex Court in the case of Haryana Waqf Board cited supra was not brought to my notice, nor was it noticed by me while delivering the said judgment. It can further be seen that the judgment of the learned Single Judge of this Court, namely, M.S. Vaidya, J., in the case of Tajmulhussain cited supra was also not noticed by me. In any case, now in view of the judgment of the Apex Court in the case of Haryana Waqf Board cited supra, the view taken by me in the case of Pandurang Nandlal Chandak cited supra will have to be held as per incurium.

17. In so far as the facts in the present case are concerned, undisputedly, one of the main areas of dispute between the parties is as to whether the construction is on City Survey No. 1894 or City Survey No. 1895. It is the contention of the Petitioner that the construction is on City Survey No. 1894, whereas it is the contention of the original Defendant that it is on City Survey No. 1895, which according to him is in his possession from the period of his ancestors. No doubt that there are other ancillary issues regarding the title of the property also. However, in so far as claim of the Plaintiff regarding the entitlement of Defendant to City Survey No. 1895 is concerned, the same is not contested by the Plaintiff. At the same time, in so far as the entitlement of the Plaintiff to City Survey No. 1894 is concerned, the same is not contested by the Defendants.

18. One more fact that needs to be taken into consideration is that though the Petitioner had applied for getting the measurement done through the City Survey Officer, the same could be done as the Defendants­Respondents had objected to the measurement being carried out by the City Survey Officer on the ground of pendency of the Regular Civil Suit No. 513 of 2007 between the parties.

19. In that view of the matter, to find out as to whether the Defendants have, in fact, encroached upon the City Survey No. 1894 or not, I find that the appointment of Court Commissioner would assist the Court in arriving at the just decision. Needless to state that, as has been consistently observed, the report of the Court Commissioner would not be conclusive and if any of the parties are aggrieved by the same, such a party would always be entitled to cross­examine the Court Commissioner, so as to challenge the veracity of the report.

20. In that view of the matter, the Writ Petition succeeds. The impugned order dated 7th July, 2009 passed by the learned 8th Joint Civil Judge, Senior Division, Pune below Exhibit 35 in Regular Civil Suit No. 513 of 2007 is quashed and set aside. The application filed by the Petitioner­Plaintiff below Exhibit 35 in Regular Civil Suit No. 513 of 2007 for appointment of City Survey Officer as "Court Commissioner" is allowed.

21. In the facts and circumstances of the case, there shall be no order as to costs.

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