Balu Babu Parpolkar v. Shankar Narayan Yadav & Ors.

Mr.M.S.Lagu for the petitioner. CORAM : A.S.OKA, J. DATE : 23rd July 2009. P.C.: . By this writ petition under Article 227 of the Constitution of India, the petitioner has taken an exception to an order by which the learned Judge rejected an application for appointment of the Court Commissioner.

The petitioner filed a suit for injunction restraining the respondents for preventing them from committing any acts of encroachment on the suit property. A surveyor was appointed as Court Commissioner for carrying out measurements and for preparing a map. The surveyor submitted a report to which both petitioner and respondents filed objections. An application was made by the respondents contending that since there were blunders in the report, the Commissioner be directed to make a 2 fresh inspection and submit a fresh report. By order dated 03rd July 2008, the learned Judge declared that the first report was null and void. By the said order the learned Judge purported to (cid:28) remand(cid:29) the matter to the Court Commissioner for submitting a fresh report. Accordingly, a fresh report was submitted at Exhibit

Thereafter, the petitioner plaintiff filed objections to the report. The petitioner plaintiff also filed an application at Exhibit 37 setting out the alleged errors committed by the Court Commissioner while submitting a report at Exhibit 33 and prayed that the Taluka Inspector of Land Records may be appointed as the Court Commissioner to carry out survey and submit a report. The said application has been rejected by the learned Judge by the impugned order.

The learned counsel appearing for the petitioner submitted that when the trial Court found that the first report submitted by the Court Commissioner was erroneous, the objection raised by the respondents was accepted and the Commissioner was directed to carry out fresh survey. He submitted that glaring errors in the report filed by the Commissioner after fresh survey have been set out by the petitioner in application at Exhibit 37 and therefore the learned 3 Judge ought to have appointed the Taluka Inspector of Land Records as the Court Commissioner. He submitted that the dispute between the parties was as regards the boundary and therefore it was necessary to appoint the Taluka Inspector of Land Records as the Court Commissioner.

I have carefully considered the submissions. It is true that as there is a dispute between the parties regarding the boundary, a survey officer can be appointed as a Court Commissioner to carry out survey and submit a report. Accordingly a surveyor was appointed as a Court Commissioner who submitted two reports as narrated earlier. A report of the Court Commissioner together with evidence taken by the Court Commissioner becomes evidence in the suit by virtue of sub-rule 2 of Rule 10 or Order XXVI of the Code of Civil Procedure, 1908. Though the report becomes evidence, it is never conclusive. The parties are always free to file objections to the report and can apply for examining the Court Commissioner before the Court. Merely because one of the parties is not satisfied with the Commissioner(cid:25) s report or merely because there are errors in the Commissioner(cid:25) s report, the Court cannot keep on appointing the Commissioners one after the other. This is all contrary to the scheme of order XXVI of the said Code. 4

In the present case, the petitioner has already filed his objections to the earlier Commissioner(cid:25) s report. As stated earlier, though the report of the Commissioner is evidence in the suit, it is not conclusive. The parties will be allowed to lead evidence at appropriate stage. The petitioner can always apply to the Court for calling the Commissioner for cross-examination. Subject to what is observed above, there is no error in the impugned order. Writ Petition is accordingly rejected.

(A.S.OKA,J)