Appellate Court Can Appoint Another Court Commissioner If One Appointed By Trial Court Did Not Follow Proper Procedure: Bombay High Court

Observing that a plaintiff cannot be made to suffer if a Court Commissioner did not follow the procedure while making a report, the Bombay High Court has held that the Appellate Court can appoint another Court Commissioner if the one appointed by the Trial Court failed to present a correct picture of the suit land and same will not attract res judicata

“If the Appellate Court agrees with the finding of the Trial Court about non-acceptance of report of TILR (Court Commissioner), it would have nothing before it to assess as to whether there is indeed any encroachment at the site. In these circumstances, I am of the view, it would be appropriate the Appellate Court directs re-measurement of land by appointment of Court Commissioner. Such an exercise can be undertaken by exercising power of the Appellate Court vested under the provisions of Order 41 Rule 27 of the Code,” Justice Sandeep V. Marne held.

The bench set aside District Court’s order refusing to appoint another Court Commissioner in a case where trial court had appointed one to measure the suit land. The trial court had discarded the Court Commissioner’s report as he had not issued notice to adjacent landholders before taking measurements of the suit land. It added that even the trial court could have appointed another Commissioner.

“In cases where Court Commissioner fails to present before the court correct picture prevailing at the site, the Trial Court itself is empowered to appoint another Court Commissioner and there is no question of attracting the principle of res judicata,” said the court.

The bench said that plaintiff cannot be made to suffer if the Court Commissioner did not follow proper procedure.

“TILR [Taluka Inspector of Land Record] unfortunately did not follow the proper procedure at the time of conducting measurements. The question is whether Petitioner / Plaintiff can be made to suffer if TILR has committed mistake while carrying out the measurement of land. The answer to this question would obviously be in the negative,” it added.

The bench noted that there is no finality in the trial court's decision as the appeal against it is pending. 

"In cases where Court Commissioner fails to present before the court correct picture prevailing at the site, the trial court itself is empowered to appoint another court commissioner and there is no question of attracting the principle of res judicata," it added.

Order 41 Rule 27 of the Civil Procedure Code provides for circumstances in which Appellate Court can permit the parties to adduce additional evidence. While the petitioner did not to refer to Order 41 Rule 27 in its application, that alone cannot take the application out of the ambit of this provision, the court held.

“True it is that Plaintiff / Petitioner has failed to refer to the provisions of Order 41 Rule 27 of the Code in its application for appointment of Court Commissioner for re-measurement of land. That alone however cannot not take the application out of ambit of provisions of Order 41 Rule 27. In my view even though the provision is not mentioned in the application, the application filed by Petitioner / Plaintiff would come within the ambit of the provisions of Order 41 Rule 27,” the court said.

The petitioner in a civil suit had sought a permanent injunction and recovery of possession of encroached land. He then filed an application under Order 26 Rule 9 of CPC for appointment of Court Commissioner for measurement of lands and fixing of boundaries.

The trial court allowed the application and appointed Taluka Inspector of Land Record (TILR) as the Court Commissioner. The TILR’s report was prima facie in favour of the petitioner. However, the Trial Court agreed with the defendants’ objections to the report’s validity and dismissed the suit.

The petitioner filed an appeal in the District Court. In the appeal, he also filed an application for appointment of a Court Commissioner for remeasurement of lands. The District Judge rejected this application. 

Advocate Dilip Bodake for the petitioner submitted before the high court that the trial court discarded the report of the TILR and the District Court is also likely to ignore it in the appeal. He submitted it is necessary to re-measure the lands to present a clearer picture.

Advocate Samir Kumbhkoni for the respondents said that the application for re-measurement of lands before the Appellate Court was not maintainable as it was not under Order 41 rule 27 of the CPC. He said allowing the application would amount to res judicata as the issue regarding the measurement of land is concluded between the parties.

The fact that trial court appointed a Court Commissioner raises a presumption that it needed an actual picture of the property at site and extent of possession of lands by the rival parties, the bench said.

The court noted that the petitioner can contend before the Appellate Court that the TILR followed all procedures at the time of conducting measurements by which he would run the risk of inviting a dismissal order from the Appellate Court.

It observed that the situation that exists before the Appellate Court is that the measurement report of TILR has been rejected and if the Appellate Court were to agree with the finding of the Trial Court about non acceptance of report of TILR, it would have nothing before it to assess as to whether there is indeed any encroachment at the site.

“In these circumstances, I am of the view, it would be appropriate the Appellate Court directs re-measurement of land by appointment of Court Commissioner,” Justice Marne observed and allowed the petition.

Case no. – Writ Petition No. 7278 of 2022

Case Title – Yasin Gulab Shikalkar v. Maruti Nagnath Aware and Ors.

Citation: 2023 LiveLaw (Bom) 85