In a significant order, the Bombay High Court recently dismissed a writ petition challenging the appointment of a cadastral surveyor as a Court Commissioner in a land encroachment matter. The Court emphasised that the appointment was essential for the proper demarcation of land boundaries, aiding in the resolution of the dispute.
The dispute originated when the plaintiff, holder of agricultural land in Mauje Savleshar, Tal Mohol, Solapur, discovered that the defendant had encroached upon a portion of the land. The plaintiff, who had acquired the land from different vendors, sought the removal of the encroachment and the restoration of possession of the encroached land. The plaintiff also requested the appointment of a cadastral surveyor as a Court Commissioner to measure the suit land and its boundaries.
Despite the fact that the suit had not progressed to the stage of framing issues or starting trial, the Civil Judge, Jr. Division, Mohol, passed an order appointing the Court Commissioner to assist in the joint measurement of the suit and adjacent lands. The defendant, challenging this premature appointment, filed a writ petition before the Bombay High Court.
The petitioner’s counsel argued that the appointment of the Court Commissioner at such an early stage of the proceedings was legally erroneous. The issues in the case had not yet been framed, and the trial had not commenced, making the appointment premature. The petitioner also contended that the plaintiff had not specifically requested the preparation of a map to indicate encroachment. On the other hand, the counsel for the respondent (plaintiff) supported the Civil Judge’s order. They emphasised that the plaintiff had made clear allegations of encroachment and sought the Court’s intervention to resolve the dispute. The appointment of the Court Commissioner, they argued, was essential for accurately determining the extent of the encroachment and the boundaries of the land.
The High Court examined the arguments in detail, noting that the plaintiff had specifically alleged encroachment by the defendant over 7 to 8 gunthas of land. The Court observed that the suit primarily sought the removal of encroachment and the restoration of possession, and the prayer for the appointment of a Court Commissioner was a subsidiary request to facilitate this.
The Court also referred to the provisions of Section 75 and Order XXVI Rule 9 of the CPC, which empower the Court to appoint a Court Commissioner at any stage of the proceedings if it is deemed necessary for the elucidation of the matter in controversy. The Court stated that it could not be an immutable rule that the appointment of a Court Commissioner is barred before the evidence is adduced, especially when the demarcation of boundaries and the removal of encroachment are central to the case.
In light of this, the Court concluded that the appointment of the cadastral surveyor to measure the land was justified and would assist in resolving the dispute fairly. Citing a Supreme Court decision, the High Court emphasised that when encroachment and boundary issues are at stake, joint measurements are vital for an equitable resolution.
The High Court dismissed the writ petition, agreeing with the trial court’s decision to appoint the Court Commissioner. The Court ruled that the appointment was not premature and would aid in the fair determination of the case. Furthermore, the Court rejected the petitioner’s request for an extension of the ad-interim order, noting that no further intervention was required.
This decision highlights the importance of appointing a Court Commissioner at an early stage in cases involving boundary disputes and encroachment issues, ensuring the proper demarcation of land for an effective resolution.
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