A commissioner may be appointed to ascertain disputed property boundaries without impermissibly collecting evidence.

The petitioner challenged the Trial Court’s order appointing the Taluk Surveyor as Court Commissioner under Order XXVI Rule 9 CPC in a suit concerning alleged encroachment and recovery of possession.

He contended that phodi proceedings had already surveyed and demarcated the properties, and that the related revenue records were in evidence as Exhibits D2–D4; a further commission would duplicate that exercise and improperly collect evidence.

The Trial Court considered the boundary descriptions in the sale deed and compromise petition, and found a commission necessary to determine the extent and boundaries of the disputed properties.

Whether the Trial Court erred in appointing a Court Commissioner under Order XXVI Rule 9 CPC despite the earlier phodi proceedings and revenue records on record

Whether appointing the Commissioner would amount to impermissible collection of evidence

Order XXVI Rule 9 CPC empowers a court to issue a commission for local investigation where it is necessary to elucidate a matter in dispute.

Relying on the principles stated by a Coordinate Bench in W.P. No. 201274/2022, the Court observed that a commission may be appointed even suo motu; the Commissioner’s report is not conclusive proof, but is evidence to be assessed alongside the other material on record.

The report does not displace or override admissions made by the parties during trial.

The petition invoked Article 227 of the Constitution, under which the High Court considered whether the impugned order warranted supervisory interference.

The dispute concerned alleged encroachment arising from an asserted mistake in the boundary descriptions in the sale deed and compromise petition.

The Trial Court considered the existing evidence but concluded that a local investigation was needed to ascertain the properties’ boundaries and the extent of the alleged encroachment.

The High Court held that the existence of prior phodi proceedings and revenue records did not, by itself, make the appointment improper.

Since the Commissioner’s report would be only one item of evidence and would not override party admissions, the appointment did not establish impermissible evidence collection.

The Trial Court’s order was supported by cogent reasons.

The Trial Court’s order appointing the Taluk Surveyor as Court Commissioner was left undisturbed.