Case Note & Summary
The High Court of Judicature at Bombay, Aurangabad Bench, heard a writ petition challenging an order dated 18.07.2024 passed by the Civil Judge, Senior Division, Shahada, in Regular Civil Suit No.23 of 2023. The petitioner, an adjoining landowner, had filed the suit seeking mandatory injunction for removal of encroachment and illegal constructions on 15 R land allegedly acquired by the State Government for road and canal, which remained unutilized. The respondent no.1, legal heir of the original owner, re-occupied the land and denied acquisition, alternatively arguing non-utilization negated acquisition. During suit proceedings, before the petitioner could complete his evidence, respondent no.1 filed an application under Section 75 read with Order 26 Rule 9 of the Code of Civil Procedure, 1908, for appointment of a Court Commissioner to admeasure the land and fix boundaries. The Trial Court allowed the application, appointing the District Superintendent of Land Records. The core legal issue was whether the Trial Court was justified in appointing a Court Commissioner at this stage when the dispute centered on whether the land was acquired by the Government. The petitioner argued the application was not maintainable and aimed to protract proceedings, while respondent no.1 supported the Trial Court's order. The High Court analyzed Section 75 and Order 26 Rule 9 CPC, noting that appointment of a Court Commissioner is discretionary and permissible for local investigation to elucidate matters in dispute, but cannot be for creation or collection of evidence. The Court emphasized that in encroachment cases, the plaintiff must first adduce evidence to prove the encroachment and the land's status; only then does the defendant get to rebut. Appointing a commissioner before the plaintiff's evidence would allow the defendant to collect evidence, which is impermissible. The Court referenced its previous decision in Writ Petition No.14046 of 2021, which addressed similar issues. The High Court held that the Trial Court's order was premature and amounted to allowing evidence collection by the defendant, thus quashing it. The writ petition was allowed, and the Trial Court was directed to proceed with the suit in accordance with law.
Headnote
A) Civil Procedure - Appointment of Court Commissioner - Premature Appointment Before Plaintiff's Evidence - Code of Civil Procedure, 1908, Section 75 and Order 26 Rule 9 - In a suit for mandatory injunction for removal of encroachment on allegedly government-acquired land, the defendant sought appointment of a Court Commissioner for land measurement before plaintiff's evidence was completed - The High Court held that the plaintiff must first adduce evidence to prove encroachment and the land's status as acquired government land, and appointing a Court Commissioner at this stage would amount to allowing the defendant to collect evidence, which is impermissible - The Trial Court's order was quashed as premature (Paras 7.1-7.8). B) Civil Procedure - Burden of Proof in Encroachment Cases - Plaintiff's Obligation to Prove Case - Code of Civil Procedure, 1908 - In suits for perpetual and mandatory injunction regarding encroachment, the plaintiff is the carrier and master of the suit and must discharge the burden of proving the area and alleged encroachment - Only after the plaintiff adduces evidence does the defendant get an opportunity to rebut - The Court emphasized that one who pleads must lead evidence to prove the pleading (Paras 7.3-7.4). C) Land Law - Government Acquisition - Status of Acquired Land - Land Acquisition Act - The dispute involved whether 15 R land was acquired by the State Government and whether non-utilization for public purpose affects its acquired status - A previous suit by the original owner was dismissed with findings that the land was acquired and the owner had no rights, which decree remained intact - The Court noted these facts but did not decide the merits, focusing on procedural aspects of commissioner appointment (Paras 5.1-5.3, 7.5-7.6).
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Issue of Consideration: Whether the Trial Court was justified in appointing a Court Commissioner for measurement of land under Section 75 read with Order 26 Rule 9 of Code of Civil Procedure, 1908 when the dispute centers on whether the land was acquired by the Government and before the plaintiff could complete his evidence
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Final Decision
High Court allowed the writ petition, quashed the Trial Court order dated 18.07.2024 appointing Court Commissioner, and directed the Trial Court to proceed with the suit in accordance with law
