Court Commissioner cannot be appointed before evidence where the dispute involves land status rather than boundary demarcation.

The Petitioner filed a suit (Regular Civil Suit No. 23 of 2023) for a mandatory injunction seeking the removal of alleged illegal construction and encroachment by Respondent No. 1 on 15 R of land in Gut No. 89/1 at Village Kukadel

The Petitioner contended that this land was acquired by the State Government, a fact previously upheld in a 2005 suit (RCS No. 71/2005) filed by Respondent No. 1’s mother, which was dismissed

Respondent No. 1 contested the present suit, claiming the land was never effectively acquired or utilized by the State

Before the Petitioner could conclude his evidence, Respondent No. 1 moved an application under Order 26 Rule 9 of the CPC for the appointment of a Court Commissioner to admeasure the property

The Trial Court allowed the application on 18.07.2024, prompting the Petitioner to challenge the order via this Writ Petition

1. Whether the Trial Court was justified in appointing a Court Commissioner for land measurement when the primary dispute involved the legal status of land acquisition rather than a simple boundary dispute

2. Whether an application for a Court Commissioner is maintainable before the plaintiff has completed their evidence in a suit for mandatory injunction

The court applied Section 75 read with Order 26 Rule 9 of the Code of Civil Procedure, 1908, which governs the court's discretion to appoint commissions for local investigations to elucidate matters in dispute

It strictly adhered to the principle that a Court Commissioner cannot be appointed for the "collection of evidence" or to perform the duty of a party to prove their own case

The court further relied on the precedent set in Writ Petition No. 14046 of 2021 (Aurangabad Bench), which held that appointing a commissioner for measurement before the parties have adduced evidence is generally unwarranted and may amount to premature collection of evidence

The High Court found that the Trial Court failed to appreciate the "core issue," which was not a boundary dispute but a challenge to the State's acquisition of the land

The Court noted that Respondent No. 1 had essentially admitted that the disputed construction sat within the 15 R area, but argued that the acquisition was invalid—a question of fact and law already settled by a previous intact judicial decree in RCS No. 71/2005

The Court reasoned that since the burden of proof lies with the plaintiff to demonstrate encroachment, and given that the defendant's re-entry was based on a denial of the State's title, a technical measurement by a Land Record Officer would not serve to adjudicate the actual civil rights at stake

Furthermore, the court held that the application was premature as the plaintiff had not yet concluded his evidence, and allowing it would improperly assist the defendant in gathering evidence

The Court held that the appointment of the Court Commissioner was "misconceived" and an unjustifiable exercise of discretion given that the controversy did not stem from a boundary dispute but from a challenge to government title

The Trial Court was directed to proceed with the suit on its own merits without being influenced by the observations in this judgment