The Bombay High Court has clarified a critical procedural boundary in civil litigation: a Court Commissioner cannot be appointed under CPC Order 26 Rule 9 to measure disputed land before the plaintiff completes evidence in an encroachment suit. This ruling reinforces the foundational principle that the burden of proof rests squarely on the plaintiff, and judicial tools like commissions must not be misused to circumvent evidentiary obligations.
Background & Facts
The Dispute
The dispute centers on a 15 R (approximately 1.875 acres) parcel of land in Survey No. 89/1, Village Kukadel, Taluka Shahada, District Nandurbar. The land originally belonged to Kantabai Narottam Patil, mother of Respondent No. 1. In the past, the State of Maharashtra acquired this 15 R portion for public purposes - road and canal development. The owner, Kantabai Patil, later attempted to re-occupy the land and filed Regular Civil Suit No. 71 of 2005 seeking declaration of ownership and perpetual injunction against the State. The Civil Judge, Senior Division, Shahada, dismissed that suit on 18.07.2005, holding that the 15 R land had been lawfully acquired by the State and that the plaintiff had no legal right over it. That judgment and decree remain unchallenged and legally valid.
Key Facts
- The land in dispute is part of the 15 R parcel acquired by the State Government.
- The acquisition was confirmed by a final judicial decree in Regular Civil Suit No. 71 of 2005.
- Respondent No. 1, as legal heir of Kantabai Patil, re-occupied the same 15 R land and constructed structures on it.
- Petitioner, an adjoining landowner, suffered nuisance due to the encroachment and filed Regular Civil Suit No. 23 of 2023 seeking mandatory injunction for removal of encroachment.
- Respondent No. 1, in his written statement, admitted the suit property forms part of the 15 R land but denied its acquisition status, claiming it was never utilized for public purpose and thus lost its acquired character.
- Respondent No. 1 also challenged the validity of the 2005 judgment, despite not filing any appeal or revision.
- The petitioner’s evidence in Suit No. 23 of 2023 was not yet concluded when Respondent No. 1 filed an application under Section 75 read with Order 26 Rule 9 CPC for appointment of a Court Commissioner to measure the land.
Procedural History
- 18.07.2005: Civil Court dismissed Regular Civil Suit No. 71 of 2005, holding that the 15 R land was acquired by the State Government.
- 2023: Petitioner filed Regular Civil Suit No. 23 of 2023 seeking mandatory injunction against encroachment by Respondent No. 1.
- 18.07.2024: Trial Court allowed Respondent No. 1’s application under Section 75 read with Order 26 Rule 9 CPC and appointed the District Superintendent of Land Records to measure the land.
- 24.03.2026: Writ Petition No. 12167 of 2024 filed before Bombay High Court, Aurangabad Bench, challenging the impugned order.
The Parties' Positions
Petitioner: Argued that the land’s acquired status was conclusively established by the 2005 decree. The application for a Court Commissioner was a dilatory tactic, filed before plaintiff’s evidence was complete, and sought to shift the burden of proof. The dispute was not about boundary demarcation but about the legality of re-occupation of government land.
Respondent No. 1: Contended that the land was never acquired, and even if acquired, non-utilization nullified the acquisition. The application for measurement was necessary to clarify the exact extent of encroachment and to counter the plaintiff’s vague allegations.
Respondents 2 & 3 (State): Supported the 2005 judgment and affirmed the State’s ownership of the 15 R land. They did not contest the petitioner’s claim of encroachment but emphasized the finality of the earlier decree.
Relief Sought
The petitioner sought quashing of the Trial Court’s order dated 18.07.2024 appointing the Court Commissioner, and a direction that no such appointment be made until after the plaintiff completes his evidence.
The Legal Issue
Can a Court Commissioner be appointed under Section 75 read with Order 26 Rule 9 of the Code of Civil Procedure to measure disputed land in an encroachment suit before the plaintiff has completed his evidence, where the core dispute is whether the land was ever acquired by the State, and not a boundary dispute?
Arguments Presented
For the Appellant/Petitioner
The petitioner’s counsel relied on the binding precedent set by the same High Court in Writ Petition No. 14046 of 2021, which held that appointing a Court Commissioner before the plaintiff completes evidence amounts to improper collection of evidence and violates the principle that the plaintiff, as the master of the suit, bears the burden of proving encroachment. He emphasized that the 2005 decree conclusively established the land’s acquired status, making the application a collateral attack on a final judgment. The application was not for clarifying boundaries but for challenging the very foundation of the plaintiff’s case.
For the Respondent/State
Respondent No. 1’s counsel relied on Writ Petition No. 487 of 2008 (Nagpur Bench), where a Court Commissioner was appointed after a cadastral survey report was found deficient. He argued that the application was necessary to ascertain the exact extent of the land in dispute and that the Trial Court had discretion under Order 26 Rule 9. He contended that the 2005 judgment was not binding on him as a legal heir and that non-utilization of land nullified acquisition.
The Court's Analysis
The Court began by reaffirming the settled legal position that Order 26 Rule 9 CPC permits appointment of a Court Commissioner only when a local investigation is requisite to elucidate a matter in dispute or ascertain market value, mesne profits, or damages. Crucially, such commissions cannot be used to collect evidence or shift the burden of proof from the plaintiff to the court.
"It is trite law that one who pleads, has to lead evidence to prove the pleading. Plaintiff is the carrier and master of the suit."
The Court observed that the petitioner had not yet led any evidence. The defendant’s application was filed prematurely, at a stage where the plaintiff’s case had not even been presented. The dispute was not about where one property ended and another began - it was about whether the land was government land at all. The defendant’s written statement itself admitted the suit property formed part of the 15 R land, but then denied its acquisition status. This was not a boundary dispute; it was a challenge to the title and status of the land.
The Court distinguished Writ Petition No. 487 of 2008, noting that in that case, a cadastral survey report already existed and was found inadequate. Here, no such report existed, and the defendant sought to use the Commissioner to create evidence to rebut the plaintiff’s claim - something the law does not permit at this stage.
The Court further emphasized that the 2005 judgment, which held the land was acquired, remained unchallenged and binding. The defendant’s attempt to reopen that issue through a procedural application was impermissible. The Trial Court’s order, by allowing the Commissioner’s appointment, effectively permitted the defendant to evade his obligation to contest the plaintiff’s case on its merits.
"Appointment of Court Commissioner in terms of the impugned order would not at all serve any purpose for adjudication of the Civil Rights of the parties in the suit."
The Court concluded that the Trial Court had misused its discretion. The application was not for clarification but for evidence collection, and its allowance prejudiced the plaintiff’s right to present his case first.
The Verdict
The writ petition was allowed. The impugned order dated 18.07.2024 appointing the Court Commissioner was quashed and set aside. The Trial Court is directed not to entertain any application for appointment of a Court Commissioner under Order 26 Rule 9 CPC until after the plaintiff has completed his evidence. No costs were awarded. The Trial Court is to decide the suit on its merits without being influenced by any observation in this judgment.
What This Means For Similar Cases
Appointment of Court Commissioner Must Follow Evidence
- Practitioners must ensure that applications under Order 26 Rule 9 CPC are filed only after the plaintiff has completed evidence, unless the court is satisfied that the investigation is necessary to clarify a factual ambiguity that cannot be resolved otherwise.
- Applications filed before plaintiff’s evidence are prima facie invalid and liable to be set aside.
Precedent Judgments Bind Subsequent Litigants
- A final decree establishing land status (e.g., acquisition) cannot be collaterally attacked through procedural applications in a subsequent suit.
- Legal heirs are bound by judgments affecting the property they inherit, unless they challenge the decree through proper appellate remedies.
Boundary Disputes vs. Title Disputes
- Courts must distinguish between boundary disputes (where measurement is appropriate) and title disputes (where measurement is irrelevant).
- If the core issue is whether land is government property, appointing a Commissioner to measure it is legally impermissible and amounts to circumventing the burden of proof.
