Madhya Pradesh High Court
Geeta Bai vs Sahadat Ali on 22 April, 2025
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
SA No.2566-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 22nd OF APRIL, 2025
Second Appeal No.2566 of 2019
GEETA BAI AND OTHERS
Vs.
SAHADAT ALI AND OTHERS
.............................................................................................................................
Appearance
Shri Avinash Zargar - Advocate for the appellants/defendants.
Shri D.R. Viswhakarama - Government Advocate for respondent
No.16/State.
None for other respondents, though the name of the counsel is
reflecting in the cause-list.
.............................................................................................................................
Reserved on : 19.02.2025
Pronounced on : 22.04.2025
ORDER
This appeal under Section 100 of the Code of Civil Procedure has
been filed by the appellants/defendants being aggrieved by the judgment
and decree dated 22.08.2019 passed by the First Additional District Judge,
Nagod, District Satna, in Regular Civil Appeal No.27/2017 affirming the
judgment and decree dated 22.04.2017 passed by the First Civil Judge
Class-1, Nagod, District Satna, in Civil Suit No.06A/2015 whereby the
trial court has allowed the suit filed by the plaintiffs/respondents.
2. Learned counsel for the appellants has submitted that vide order
dated 21.11.2019, this appeal has been admitted on the following
SA No.2566-2019
substantial question of law:-
'(A) Whether in view of the admitted fact that demarcation has not
been carried out by the Tahsildar who was appointed as
Commissioner by the trial court, the courts below could have relied
on the demarcation report submitted by the Revenue Inspector & the
Naib Tahsildar and could have decreed the claim of the plaintiffs on
the basis of the same?'
3. As per the facts of the case, a suit was filed by the
plaintiffs/respondents before the trial court claiming recovery of
possession, which was decreed vide order dated 22.04.2017 in their
favour. However, against the order of trial court, the defendants have
preferred an appeal and the Appellate Court vide order dated 22.08.2019
has dismissed the appeal affirming the order of the trial court.
Thereafter, the appellants herein have preferred a second appeal before
this court i.e. S.A. No.720 of 1996, in which, this court vide order dated
05.11.2012 remanded the matter to the trial court. According to the
appellants, in pursuance of said remand order, the trial court has
appointed the Commissioner directing the Tahsildar to carry out the
demarcation, but according to the appellants, the said demarcation was
not carried out by the Tahsildar but that was done by the Revenue
Inspector and Naib Tahsildar. According to the appellants, the
demarcation report submitted by the said officer could not have been
taken note of and that cannot be a foundation of decreeing the suit
because that report was illegal and inspection was carried out by the
officer other than the officer appointed by the court. According to the
appellants, the report submitted by the Commissioner was also not
supported with a map and as such, that was disputed and the
Commissioner was cross-examined in the court, but the trial court
decreed the suit relying upon the report of demarcation submitted by the
Revenue Inspector and Naib Tahsildar and even the Appellate Court has
SA No.2566-2019
also affirmed the order passed of the trial court.
4. As per learned counsel for the appellants, the report could not
have been taken note of because it was not submitted by the
Commissioner appointed by the court and that demarcation was done by
some another officer and according to the Commissioner i.e. Tahsildar
does not have any power to delegate the power of demarcation to some
other officer. Learned counsel for the appellants has placed reliance
upon the orders reported in MANU/CG/0343/2010 (South Eastern
Coalfields Limited Vs. State of C.G. and others) and ILR 2006 KAR
3588 (Shamanna Setty Vs. B.L. Channegowda).
5. As per the submissions made by the learned counsel for the
appellants, the report of demarcation was submitted by an officer not
authorized to do so. When the court directed the Commissioner to
appoint some officer to carry out the demarcation and to submit the
report and in pursuance of the direction, Commissioner appointed the
Tahsildar to get demarcation done and to submit the report but the
Tahsildar instead of doing the said exercise has delegated power to some
other officers i.e. Revenue Inspector and Naib Tahsildar to carry out the
demarcation and to submit the report and as such, that report was illegal,
not acceptable and could not have been made the foundation of
impugned judgment and decree.
6. Although on the date when the matter was being argued, the
counsel for the private respondents did not appear, although, later on he
has submitted his written arguments.
7. The respondents have reiterated the story as contained in the
SA No.2566-2019
impugned judgment and decree. Although in answer to substantial
question of law on which the appeal has been admitted, he has not
addressed the court as to how when the Tahsildar has been appointed by
the Commissioner, he can further appoint the Revenue Inspector and
Naib Tahsildar. The counsel for the private respondents has reproduced
the order of the court so as to direct the trial court for appointing
Commissioner. The said direction of the Appellate Court is as under:-
"The records of the Courts below be sent back forthwith.
The trial Court is directed to appoint any revenue officer as
Commissioner and thereafter the trial Court shall proceed
to decide the suit expeditiously, in accordance with law."
8. The counsel for the respondents has submitted that as per Section
19 of the Madhya Pradesh Land Revenue Code, 1959, the Naib
Tahsildar is also a Revenue Officer and under Section 169 of the Code
1959, the Tahsildar and Naib Tahsildar are the competent Revenue
Officers to carry out demarcation of boundaries of survey number and
according to him, it does not make any difference whether the
demarcation is done by the Additional Tahsildar or Naib Tahsildar.
According to him, the Naib Tahsildar is also a Revenue Officer and his
report in any manner cannot be said to be illegal.
9. In view of the submissions made by the counsel for the parties and
perusal of record, undisputedly the matter was remitted back with a
specific direction that the trial court would appoint any Revenue Officer
as Commissioner and thereafter the trial court shall proceed to decide
the suit. It is also undisputed that the trial court has directed the
Commissioner to appoint any subordinate officer for carrying out the
demarcation. The Commissioner thereafter has appointed the Tahsildar.
SA No.2566-2019
10. The only question emerges to be adjudicated and to answer the
substantial question of law on which the appeal admitted is whether the
Tahsildar could further appoint any Revenue Officer for following the
direction of the Commissioner or he himself should have done the
needful.
11. In a case i.e. Shamanna Shetty (supra) on which the counsel for
the appellants has relied upon, the Karnataka High Court had taken a
report of Revenue Officer not appointed as Commissioner by the court,
but some other officer carried out the inspection and submitted its report
and as per the order of the court that report could not have been
considered. The observation made by the Karnataka High Court in the
said case is as under:-
"5. Having heard the Learned Counsel for the parties,
the only point to be considered is whether the Trial Court is
justified in accepting the report of CW-3-Narayana, even
though he was not the Commissioner appointed in the case
and whether the by the Court under Order 26 Rule 10 of
Code of Civil Procedure, has got power to delegate his
power to another person. The facts of this case are not
disputed. This Court while allowing the RFA has permitted
the plaintiff to file an application for appointment of
surveyor as a Commissioner. In obedience to the directions
of this Court, the plaintiff filed an application for
appointment of the Commissioner. Accordingly the Court
allowed the application; appointing the ADLR, Bangalore,
as Commissioner. But unfortunately the ADLR, Bangalore
Sub-Division instead of executing the warrant has directed
the Supervisor CW-3 Narayana to execute the same.
Accordingly the Supervisor has executed the warrant and
at the time of execution of the warrant the appellants have
opposed for execution of the warrant by a Supervisor on
the ground that he is not the authority to execute a warrant.
Still the warrant has been executed by him. The report by
CW-3 has been forwarded to the Court by the ADLR who
has been examined as CW-2. It is no doubt true that if the
ADLR is not well versed with the Commission work,
without the permission of the Court he cannot delegate his
SA No.2566-2019
powers calling upon his subordinate to execute the warrant.
The Trial Court without considering this aspect of the
matter by accepting the report of CW-3 has decreed the
suit. Therefore, this Court is of the opinion that there was
inherent defect in execution of warrant by CW-3 as he was
not the Commissioner appointed by the Court. Whatever
may be the experience or expertise of CW-3 in execution
of the work, even if his report is perfect the same could not
have been accepted by the Trial Court in view of the
admission of CW-2, the Asst. Director of Land Records.
According to CW-2 Commission work is executed by CW-
3 and therefore this Court is of the opinion that under
Order 26 Rule 9 of Code of Civil Procedure, if a person is
appointed by the Court as a Commissioner for local
inspection, he cannot delegate the said work to any
other person as it is the right of the Court alone and if
such person has executed the warrant, the report
cannot be relied upon by any Court as the execution of
the warrant itself is without jurisdiction. Therefore the
judgment and decree of the Trial Court is to be set aside."
(emphasis supplied)
12. Further, in case of South Eastern Coalfields Limited (supra), the
Bilaspur High Court has also considered this aspect and discarded the
report submitted by the officer other than the Commissioner appointed
by the court. The observation made by the High Court is as under:-
"33. In case of land not surrounded by metes and
bounds, the fact that the land leased out was the part of
land acquired for the Plaintiff may be proved by
demarcation of land by expert authorities and for proving
such fact at the instance of the Plaintiff, the Court has
issued Commission for local inspection, but the
commissioner so appointed has not
investigated/inspected/demarcated the land and one
commissioner out the two has constituted a team for
execution of Commission and delegated the work of
Commission without permission of the Court. The
Commission report submitted by the officers to whom
the work has been delegated by one of the
Commissioners without permission is without
jurisdiction and is of no use. Therefore, the commission
report, in the present case, is of no help for proving
SA No.2566-2019
issue No.1."
(emphasis supplied)
13. Perusal of above enunciation of law and the respective provision
under which the Commissioner has to submit the report i.e. Order 26
Rule 10 of the Code of Civil Procedure, which reads as under:-
"10. Procedure of Commissioner.--(1) The
Commissioner, after such local inspection as he deems
necessary and after reducing to writing the evidence taken
by him, shall return such evidence, together with his report
in writing signed by him, to the Court.
(2) Report and depositions to be evidence in suit.
-- The report of the Commissioner and the evidence taken
by him (but not the evidence without the report) shall be
evidence in the suit and shall form part of the record; but
the Court or, with the permission of the Court, any of the
parties to suit may examine the Commissioner personally
in open Court touching any part of the matters referred to
him or mentioned in his report, or as to his report, or as to
the manner in which he has made the investigation.
(3) Commissioner may be examined in person.--
Where the Court is for any reason dissatisfied with the
proceedings of the Commissioner, it may direct such
further inquiry to be made as it shall think fit."
14. The aforesaid provision makes it clear that it is the duty of the
Commissioner to carry out the direction issued by the court and submit
the report. The provision nowhere specify whether the report other than
the Commissioner can be submitted before the court or not.
15. In the present case, undisputably the court has directed the
Commissioner to appoint any subordinate officer for carrying out the
demarcation and to submit the report. The Commissioner in pursuance
SA No.2566-2019
of the said direction of the court, appointed the Tahsildar for carrying
out the demarcation but the Tahsildar instead of doing so and to follow
the instructions of the Commissioner has further delegated the power
and appointed the Revenue Inspector and Naib Tahsildar and they have
submitted the report.
16. Thus, in my opinion, the submissions made by the counsel for the
appellants have some substance and the said report neither could have
been taken note of nor could have been made foundation of the
impugned judgment and decree. Therefore, the impugned judgment and
decree in pursuance of the substantial question of law framed by the
court is answered in affirmative. The appeal is allowed. The impugned
judgments and decrees passed by the trial court as well as the appellate
court are set aside. Matter is remitted back to the trial court for
complying the earlier direction directing the Tahsildar to conduct the
demarcation and submit report within a period of two months from
today and if it is done, the trial court will proceed further accordingly.
17. With the aforesaid observation, the appeal stands allowed and
disposed of.
18. Record of the courts below be sent back immediately along with a
copy of this order for its compliance and necessary action.
(SANJAY DWIVEDI)
JUDGE
Devashish
ac/-
