First Appellate Court Has Same Power As Trial Court To Issue Commission For Local Inspection: MP High Court

Madhya Pradesh High Court has recently underscored that the appellate court is equally empowered as the trial court under Section 107 CPC to issue a commission for the demarcation of suit property, even in the absence of a commission application by either of the parties.

The single-judge bench of Justice Dwarka Dhish Bansal held that when the identity of the land is in dispute and demarcation of property is warranted , the same can only be ascertained through a commissioner appointed by the court.

“As such, it is clear that dispute of encroachment, location of suit property, area, identity, boundaries and survey numbers cannot be decided without the appointment of commissioner”, the court clarified.

Placing reliance upon Gajraj & Ors v. Ramadhar & Ors. (1975), the bench sitting at Jabalpur noted that the first appellate court itself can carry out the exercise of demarcation of suit property. Therefore, the appellate court erred in remanding the suit, initially dismissed by the trial court, for fresh adjudication by the trial court for demarcation of the suit property alone, the high court observed in the order.

“…the impugned judgment of remand passed only upon requirement of demarcation of the suit property, is not sustainable because the exercise of getting the suit property demarcated can be done by the first appellate court itself. It is also pertinent to mention here that in the present case no application under Order 41 Rule 27 CPC or under Order 6 Rule 17 CPC was filed by any of the parties to the case.”

While setting aside the impugned judgment of remand, the High Court directed the first appellate court to decide the appeal after issuing a commission for local inspection of the suit property ‘including the survey numbers disclosed by the defendants/appellants’ to ‘ascertain exact location, number and necessary details of the suit property’.

“The Commissioner must be directed to prepare a correct map of the spot and to submit the same along with his report. After such report along with the map is obtained and after considering the objections of the parties to the same, if any, in accordance with law, the first appellate Court will decide the appeal on the basis of the entire record including the report of Commissioner”, the court further noted.

The trial court had earlier dismissed a suit for declaration of title and permanent injunction filed by the current appellants. On first appeal, Additional District Judge, Sagar District reversed the said judgment and remitted the matter back to the trial court for fresh adjudication after demarcating the suit property through a commissioner/ revenue officer.

Case Title: Rajaram Mali S/o Shri Kanhaiyalal Mali & Anr v. Smt. Ganga Bai (Dead) & Ors.

Case No: Misc. Appeal No. 1282 of 2005

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