Survey Commissioner cannot be appointed to collect evidence: Jharkhand High Court

The Jharkhand High Court, in a recent judgment, while setting aside an order of the trial court appointing a survey commissioner, held that the order did not establish the need for a local inquiry under Order XXVI Rule 9 of the Code of civil procedure (CPC) and it was not enough. reasoning.

The High Court cited the precedent of the Apex Court in Saraswathy Vs. Viswanathan (2002 (2) CTC 199), ruling, setting aside the trial court’s order and pointed out, “The object of the appointment of the Commissioner is not to collect evidence, but to elucidate matters which are local in nature and which can only be done by local inquiry on the spot.”

Justice Subhash Chand, presiding over the case, stated, “The reasons invoked in the very application submitted on behalf of the plaintiffs do not fall under Order XXVI Rule 9 of the CPC. There being no dispute between the parties as to the identity and also the location of the suit property, the impugned order by which the learned court allowed the application calls for interference and this application deserves to be allowed.”

According to the factual matrix of the case, the plaintiffs filed an action in which they sought to declare the plaintiffs’ right, title and interest in certain lands, to recover possession from the defendants as alleged trespassers and to secure a permanent possession. order.

The plaintiffs claimed to be the rightful owners and alleged that the defendants had fraudulently obtained an exchange order in respect of the disputed land from the Sub-Divisional Officer (SDO), Deoghar.

In the course of the proceedings, after the conclusion of evidence, the plaintiffs filed an application under Order XXVI Rule 9 CPC seeking the appointment of a surveyor plea commissioner to inspect and report on the lands in dispute. The application was contested by the defendants on the ground that there was no dispute as to the identity or location of the property, rendering such an appointment unnecessary.

However, the trial court granted the request, prompting the defendants to challenge the order before the High Court.

The Court emphasized that parties may not use the provision to gather evidence, holding, “The conclusion recorded by the learned court is perverse, the reason being in the very request for the appointment of the pleading commissioner in which the plaintiff specified for what purpose he wants to request the report of the investigating commissioner. There is no finding of the learned trial court that the survey commissioner’s report was necessary for the fair and just assessment of the respective claims of both the parties.”

Allowing the application, the High Court set aside the trial court’s decision and reiterated that judicial discretion in appointing commissioners must comply with the principles set out in the CPC and judicial precedents.

Case Title: Krishna Mistry @ Krishna Vishwakarma Vs Baidyanath Prasad Yadav & Ors

LL Citation: 2024 LiveLaw (Jha) 200

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