Courts may appoint a commissioner for local inspection when encroachment extent is central to adjudication.

In brief

The question

1. Whether a Court Commissioner should be appointed under Order XXVI Rule 9 CPC to inspect the property and ascertain the location and extent of the alleged encroachment.

The court held

The High Court allowed the writ petition and quashed the trial court’s order dated 15 December 2021; I.A. No. 10 was allowed.

It also directed

The parties may submit memos of instructions, after which the trial court must appoint a competent Commissioner, preferably with relevant technical expertise, to inspect the property with reference to survey records, boundaries, and other relevant particulars.

The parties may object to the Commissioner’s report, and their contentions on the merits remain open.

01Facts

The plaintiff brought a suit challenging the validity of certain sale deeds and seeking a declaration of ownership over 6¼ guntas (6,800 square feet), together with recovery of possession of the suit property.

p. 4

After both sides had adduced evidence, the plaintiff filed I.A. No. 10 under Order XXVI Rule 9 CPC seeking a Court Commissioner to inspect the property and determine the location and extent of the alleged encroachment.

p. 5

The trial court rejected the application, and the plaintiff challenged that order under Article 227 of the Constitution.

pp. 3, 7–8

02Issues

i.1. Whether a Court Commissioner should be appointed under Order XXVI Rule 9 CPC to inspect the property and ascertain the location and extent of the alleged encroachment.

pp. 5–7

ii.2. Whether the trial court’s rejection of the application, including its treatment of the relief sought in the plaint, warranted interference under Article 227 of the Constitution.

pp. 7–8

03Law Applied

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

pp. 5–6

A local inspection may assist the court in determining physical features, boundaries, measurements, and the extent or location of an alleged encroachment; it is not, in such circumstances, merely a means of enabling a party to collect evidence.

pp. 5–7

Under Article 227 of the Constitution, the High Court may interfere where a subordinate court’s order reflects a material irregularity or perverse exercise of jurisdiction.

p. 8

Provisions in the judgment · 1 · Linked ones open on LawLens

Code of Civil Procedure, 1908 Section 151

04Reasoning

The alleged encroachment and its precise extent were central to the plaintiff’s claim for possession, and the court considered that title documents and oral evidence alone might not establish the relevant physical features or measurements.

pp. 5–7

Because the plaint sought recovery of possession and the proposed inspection was directed to identifying the location and extent of the alleged encroachment, the court rejected the defendants’ objection that the commission would simply collect evidence.

pp. 6–7

The trial court had failed to account for the possession relief and the need to determine the encroachment, amounting to an erroneous exercise of jurisdiction warranting supervisory intervention.

pp. 7–8